Rector of St. Stephen's Protestant Episcopal Church v. Rector of the Church of the Transfiguration

Majority

p. 452

The Rector, Churchwardens and Vestrymen of St. Stephen’s Protestant Episcopal Church of the City of New York, Appellant, v. The Rector, Churchwardens and Vestrymen of the Church of the Transfiguration in the City of New York, Respondent.

First Department,

November 12, 1909.

Headnote

Practice—judgment — striking out erroneous recital.

Where a judgment for the plaintiff is unusual in its provisions, does not follow the prayer of the complaint and is not what plaintiff desired, a recital that it was entered “on motion” of his attorney will be stricken out.

Appeal by the plaintiff, The Bector, Churchwardens and Vestrymen of St. Stephen’s Protestant Episcopal Church of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of June, 1909, as resettled by an order entered on the 28th day of June, 1909.

Arthur O. Townsend, for the appellant.

Charles Blandy, for the respondent.

The plaintiff appeals from an order denying its motion to resettle the judgment herein by striking out the recital that it was entered “ on motion ” of plaintiff’s attorney. While a party may always appeal from a judgment in his favor if it be less favorable than he deems himself entitled to, he may not appeal from a judgment to which he has assented. Whether or not he has assented to the judgment as entered is to be determined from the record, and there are recent decisions under which the present plaintiff apprehends that the recital in the judgment that it was entered “ on motion” of its attorney may serve to prevent a successful appeal. - The judgment in question is unusual in its provisions, and does not follow the prayer of the complaint, and it is quite evident that, in its present form, it is not what the plaintiff desires, but is what the court deemed should be entered. Under these circumstances it is inappropriate to recite that the judgment was entered on motion of

p. 453

plaintiff’s attorney, for it evidently was not. To strike out the words objected to by plaintiff will conform the judgment to the facts, and leave either party, or both, free to appeal without embarrassment arising from an erroneous recital.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Ingraham, Laughlin, Clarke, Houghton and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.