Reiners v. Niederstein, 67 N.Y.S. 41

Reiners v. Niederstein

67 N.Y.S. 41 | N.Y. App. Div. | 1900

Jenks, J.:

This is an action for specific performance of a contract of the defendant to purchase a bond and mortgage. The Special Term filed its decision, stating concisely the grounds upon which the issue was decided, and directing judgment for the plaintiff pursuant to the procedure authorized by section 1022, Code of Civil Procedure, and this was done. The defendant failed to file any exception to such decision, as provided for. in the said section of the Code, and the case does not contain any certificate that it contains all of the evidence, or all of the evidence upon the questions sought to be reviewed. This point is made . by the appellant, and we are concluded from any review of the facts or of the law, save as raised by the exceptions to the rulings. (Otten v. Manhattan R. Co., 150 N. Y. 395, 399; Frederick v. City of Johnstown, 47 App. Div. 222; Waydell v. Adams, 23 id. 508,) As to the latter point, see Rosenstein, v. Fox (150 N. Y. 354, 359). One of the objections to the plaintiff’s title was that the premises were charged with a legacy for $500. The plaintiff offered in evidence a quitclaim deed executed by the legatees of the premises after this action was com-*82rnenced, tendered it to the defendants, and offered to insert therein the name of the defendants. “ Objected to by defendant; objection overruled, defendant excepts.” There is no error in this ruling. (Haffey v. Lynch, 143 N. Y. 241, 247, 248.) There was also objection that the mortgaged premises were subject to an inchoate right of dower. The plaintiff offered in evidence a release of such dower, executed subsequent to the commencement of the action. “ Objected to by defendant, objection overruled.” There was no-error. (Haffey v. Lynch, supra.) A witness was called by the plaintiff, and was asked whether he was the person who executed the quitclaim deed then in evidence. “ Objected to;, objection overruled.” I fail to see any force in the exception. I have now noticed all the exceptions that appear in the record:. The defendant urges that the judgment is' erroneous, in that it compelled payment by defendant to the plaintiff without directing an assignment to the defendant of the bond and mortgage. As I read the judgment, it does so provide. The delivery adjudged involves an assignment. It is alleged that the judgment is erroneous, in that it ordered the defendant to execute and to deliver the note that was the - payment provided for by the contract, payable in six months, in that said note would have matured before the signing of the judgment. Were it not for the fact that no exception is filed to the decision, and that thereby we are precluded from modifying the judgment, there would be much force in this criticism of the appellant. However, the contract provides for four successive renewals of the note, and this privilege, in part, is still open, to the defendant notwithstanding that the provision for renewals is not inserted in' the judgment. The provision for notice in case of renewal must be reasonably construed so that defendant be not precluded from giving such notice by the fact that at the time of the judgment the original debt is in terms actually due.

The judgment should be affirmed, without costs.

All concurred.

Judgment affirmed, without costs of this appeal to either party.