3 N.Y.S. 476 | N.Y. Sup. Ct. | 1888
In the order overruling the demurrers leave was given to withdraw the demurrers, and to serve an answer within 20 days after the service of a copy of such interlocutory judgment upon them. The order further provided, viz.: “If they shall not withdraw their demurrers as herein provided, and answer the complaint, then the plaintiff shall have final judgment against them for the relief demanded in the plaintiff’s complaint.” Inasmuch as the judgment is entered in pursuance of the direction contained in the order, we are of the opinion that it was not a judgment by default. Our attention is directed to Avery v. Woodin, 44 Hun, 269, which, in our opinion, is wholly unlike the case before us. There no answer or demurrer had been served. We are of the opinion that the order overruling the demurrer and interlocutory judgment, and the subsequent judgment entered thereupon, are properly brought up for review by the appeal taken therefrom by the defendants.
2. Plaintiff was appointed receiver of Curtis A. Barnum in proceedings supplementary to executions, and brings this action for the purpose of enforcing payment of the several judgments, upon which he was appointed such receiver, out of the property and effects of the judgment debtor, Curtis A. Barnum. His father, Abijah Barnum, died, leaving a last will and testament, which was admitted to probate, and is set out as a part of the plaintiff’s complaint. By the first clause of the will the testator devised “the use of the brick house and premises owned by me [that is, him] * * * to Laura Barnum, his wife, for and during her natural life, and at her death I give and devise the same absolutely to my son, Curtis A. Barnum.” By a further provision ■of the will,'the testator declared, viz.: “In case my said wife shall at any time elect to sell the premises and property above devised to her use, then I
If we are right in our construction of the will in assuming that both funds are held in trust, although by contingencies yet to happen the defendant may become the owner of the principal, he is not, during the life-time of his mother,
Follett, J„ concurs.