Majority
p. 926Second Department, May, 1908. Gardiner Van Nostrand, Individually and as Executor, etc., and Others, Respondents, v. Frances Stanton Van Nostrand and Others, Respondents. Louisa B. Van Nostrand, Individually and as Executrix of John J. Van Nostrand, Deceased, Appearing Specially, Appellant.
Headnote
Judgment—erroneous entry of judgment by clerk on dismissal of appeal from order —resettlement.It is improper to enter a judgment on the dismissal of an appeal from an order. The written direction or determination of June 8, 1889,
p. 927
amending the judgment, has been treated on the different appeals to this court as an order. If, however, it be a judgment (see Saal v. South Brooklyn Railway Co., 122 App. Div. 364 ; Wetmore v. Wetmore, 162 N. Y. 503 ; Livingston v. Livingston, 173 id. 377; Chester v. Buffalo Car Mfg. Co., 183 id. 425), it was proper to enter a judgment of dismissal on our decision dismissing the appeal. (Stevens v. Central Nat. Bank, 162 N. Y. 253 ; 168 id. 560.) We reversed the order denying tlie motion to vacate the judgment of dismissal entered by the clerk for the reason that the clerk had no authority to enter a judgment not directed by us, and our dismissal of an appeal from what was in terms an order did not amount to such a direction. On re-examining the case we conclude to direct a resettlement of our order of July 23, 1907, so as to direct the entry of a judgment dismissing the appeal. Woodward, Jenks, Gaynor, Rich and Miller, JJ., concurred. Motion denied, but order of July 23, 1907, resettled in accordance with opinion.
Cases cited
- Wetmore v. Wetmore 162 N. Y. 503 p. 927
- Stevens v. Central National Bank of Boston 162 N. Y. 253 p. 927