Lewis v. Lewis — 101 N.Y.S. 1129

Majority

p. 1129

LEWIS, Appellant, v. LEWIS et al., Respondents.

(Supreme Court, Appellate Division, First Department.

December 7, 1906.)

Headnote

Appeal from Special Term. Action by Sarah D. Lewis against John A. Lewis and others to compel specific performance of a separation agreement. From a judgment dismissing the complaint, plaintiff appeals. Modified and affirmed. George L. Shearer, for appellant. Evarts, Tracy & Sherman (Thomas T. Sherman and J. Evarts Tracy, of counsel), for respondent.

We are in entire accord with the conclusion reached by the learned judge at Special Term, and agree that the complaint should be dismissed. The judgment, however, as entered might prove embarrassing, if not conclusive, if any other action, as suggested, should be instituted by reason of certain unnecessary adjudications therein contained. The judgment should therefore be modified by striking out all of its provisions after the recitals, and inserting in lieu thereof, “It is adjudged that the complaint be, and the same is hereby, dismissed, without costs to any party against the other,” and, as modified, affirmed, without costs.