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Webster v. Webster

243 N.Y. 520 Court N.Y. Decision date 1926-05-25 English

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p. 520
Lydia M. Webster, Individually and as Executrix of Mary A. Webster, Deceased, Respondent, v. Charles J. Webster et al., Defendants, and Henrietta S. Webster et al., Appellants.
(Argued May 12, 1926;
decided May 25, 1926.)

Headnote

Appeal — partition — interlocutory judgment of sale —■ appeal without permission dismissed where judgment had no element of finality as to appellant.
An appeal, without permission, from a judgment of the Appellate Division which modifies, in minor details, an interlocutory judgment of sale in partition but has no element of finality as to the appellant should be dismissed.
Webster v. Webster, 214 App. Div. 806 , appeal dismissed.
Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department,
p. 521
entered September 11, 1925, modifying and affirming as modified an interlocutory judgment of sale in partition, entered upon a decision of the court on trial at Special Term.
James M. Gorman, W. F. Cassidy and Solomon Pearlman for appellants.
Joseph W. Gott for plaintiff, respondent.
W. T. Snider and Henry W. Chadeayne for defendants, respondents.

The interlocutory judgment of sale in partition was modified in minor details by the Appellate Division.

The question is whether it is appealable as a final judgment. The notice of appeal states that it brings up for review said judgment as an interlocutory judgment. Plainly it is an interlocutory judgment.

Appellant Libbie Traktman, who claims title from Henrietta Sarah Webster, is found to be entitled to a one-seventh interest in ten or more separate parcels of real estate. As to one parcel only she claims to be the owner, in fee. The courts below have found against her but she has not been held to have no interest therein. It has no element of finality as to her. (Brown v. Feek, 204 N. Y. 238 ; Albany Hospital v. Albany Guardian Society, 214 N. Y. 435 ; Sinclair v. Purdy, 235 N. Y. 245 ; Matter of City of N. Y. [Staten Island Proceeding], 237 N. Y. 275 .)

The appeal should be dismissed, with costs.

His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ., concur; Andrews, J., absent.

Appeal dismissed.

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