Curtiss v. Jebb — 203 N.Y. 538

Majority

p. 538

Harlow C. Curtiss, Respondent, v. William T. Jebb, Appellant.

Headnote

Practice — form of judgment.

Under no rule of practice is there any justification for inserting in a judgment a provision for the issuance of an execution against the person or for quoting extracts from the judge’s charge to the jury.

Curtiss v. Jebb, 137 App. Div. 928 , modified.

(Argued June 12, 1911;

decided October 3, 1911.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 16,. 1910, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in

p. 539

an action to recover money alleged to have been paid under fraudulent representations.

Charles B. Sears and Louis L. Babcock for appellant.

James McCormick Mitchell for respondent.

Upon this appeal there are only two questions that survive the unanimous affirmance by the Appellate Division. One relates to the, exclusion of certain testimony offered by the defendant, and the other arises upon the form of the judgment entered in favor of the plaintiff. As to the first of these questions we have only to say that since the trial court, upon defendant’s objection, had previously excluded similar evidence offered by the plaintiff, the ruling excepted to by the defendant was clearly right.

As to the form of the judgment we hold that under no rule of practice is there any justification for inserting in a judgment a provision for the issuance of an execution against the person, and much less for quoting extracts from the judge’s charge to the jury. These parts of the judgment are, therefore, to be stricken out, and the judgment, as thus modified, should be affirmed, without costs of this appeal to either party.

Cullen, Ch. J., Gray, Vann, Werner, Willard Bartlett, Hiscock and Chase, JJ., concur.

Judgment accordingly.