66 Barb. 553 | N.Y. Sup. Ct. | 1873
Lead Opinion
We think in this case the order of the Special Term is not erroneous.
The original decree settled the rights of the parties in the premises, holding that they were tenants in common, and that defendant had received the rents and profits of said premises to his own use. As conclusions of law it adjudged the rights as thus stated, and directed that partition be made according to the rights so
The judgment, we think, determines that the rights of the parties were as stated; that partition should be made, by commissioners, of said premises, and that the defendant account for the rents and profits since the 4th of April, 1841. The judgment thus rendered decided the whole issue between the parties, and leaves nothing open and reserved, except matter of detail in carrying out such judgment. The commissioners to be appointed were to make partition. This was decided. The question of confirmation, and the equities arising upon the report of the commissioners, were reserved ; so were the details and equities arising upon the report of the referee." This report was to be made, but it must be confirmed, and that question is reserved ; but the question of the defendant’s liability to account for the rents and profits since the 4th of April, 1841, the time fixed in the decree, is not an open question, now, for review. The defendant should have appealed from the decree to raise that question if he wished to review it.
As the report of the referee is in conformity with the decision and interlocutory judgment made at the trial, and the court, at Special Term, in confirming such report, had simply given effect to such decision, we think the order must be affirmed. The question of the defendant’ s liability to account for the rents and profits, we think, depends upon the fact that the plaintiff was
The order of the Special Term must therefore be affirmed with costs.
Mullid, P. J., concurred.
Dissenting Opinion
dissented, being of opinion that the liability to account was reserved, &c., in the judgment.
Order affirmed,
Mullin, Talcott and E. D. Smith, Justices.]