Raymond v. Tiffany — 115 A.D. 350

Majority

p. 350

Irving E. Raymond, as President of A. A. Vantine and Company, Plaintiff, v. Louis C. Tiffany and Others, as Executors of and Trustees under the Last Will and Testament of Charles L. Tiffany, Deceased, Respondents, Impleaded with Edward S. Hosmer, as Trustee in Bankruptcy of Burnett Y. Tiffany, Appellant.

First Department,

November 5, 1906.

Headnote

Practice—appeal from conditions annexed to order — recitals in order stricken out.

The defendant moved to compel the acceptance of-his answer by a codefendaat, which motion was granted on payment of costs, from Which condition the . defendant desired to appeal. The order was entered by the codefendarit and purported to have been made upon the motion of the defendant. On a motion to resettle the order by -striking out such recital held:

p. 351

That the motion should have been granted in order that the applicant should not be met with the defense that the order appealed from was made on his own motion.

Appeal by the defendant, Edward S. Hosmer, as trustee in bankruptcy of Burnett Y. Tiffany, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 24th day of May, 1906, denying the said defendant’s motion to resettle a prior order entered on the 16th day of April, 1906.

L. M. Berkeley [S. T. D. Jones with him on the brief], for the appellant.

Arthur F. Gotthold of counsel [Gould & Wilkie, attorneys], for the respondents.

The defendant Hosmer served a copy of his answer upon the attorneys for the defendants Louis C. Tiffany and others, pursuant to section 521 of the Code of Civil Procedure. The said attorneys having returned the answer, a motion was made to compel them to accept it. The motion was granted at the Special Term, the learned justice presiding handing down the following memorandum: “ The defendant Hosmer may serve his amended answer on payment of $20 costs to the defendants Tiffany, with leave to such defendants to answer within twenty days thereafter. Settle order on notice.” Both sides submitted an order for settlement on the above decision. The moving party’s order was not signed, but the order presented by the attorneys for the defendants Tiffany and others was signed and entered. That order recited that it was made “ on motion of Samuel T. D. Jones, attorney for said defendant Edward S. Hosmer, as trustee in bankruptcy of said Burnett Y. Tiffany.”

The defendant Hosmer desires and intends to appeal from so much of said order as imposes twenty dollars costs upon him, claiming that the service of his answer upon the other defendants was a matter of right and not a matter of favor, and, therefore, that the imposition of costs was not justified.

He, therefore, moved for a resettlement of the order as entered for the purpose of having stricken out the words “ on motion of

p. 352

Samuel T. D. Jones, attorney for said defendant Edward S. Hosmer, as trustee in bankruptcy of said Burnett Y. Tiffany,” and said motion to resettle being denied, he takes this appeal.

We are of the opinion that the motion should have been granted. • A party intending to appeal from an order or a part thereof, which he claims is in violation of his rights^ should not be compelled to run the hazard upon an appeal of having the point made against him that his appeal will not lie because the order below was granted upon his request. If the recital in the order states that the order was made upon Ms motion he does run that hazard. -It has been held that a party cannot appeal from a judgment or order entered upon his own motion.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the, motion for a resettlement remitted to the justice making said order, with instructions to grant the relief prayed for.

Present O’Brien, P. J., Ingraham, Laughlin, Clarke and Scott, J J.

Order reversed, with ten dollars costs and disbursements, and the motion for resettlement remitted to the justice making said order, with instructions to grant the relief prayed for.