Webb v. Parker — 115 N.Y.S. 1148

Majority

p. 1148

WEBB et al. v. PARKER et al.

(Supreme Court, Appellate Division, First Department.

February 19, 1909.)

Headnote

Action by F. Egerton Webb and another against Susan Day Parker and another. Motion to amend judgment. Judgment as entered reversed, and new trial granted. For prior report, see 114 N. Y. Supp. 489 . Henry L. Sprague, for the motion. W. W. Mumford, opposed.

The affidavits submitted on the present motion leave it somewhat doubtful whether or not the appellant Norton is entitled to enforce his lien as against the plaintiffs. The necessary findings to determine this ques

p. 1149

tion were not incorporated in the decision. Although, as between plaintiffs and the defendant Parker, we entertain no doubt as to the correctness of the conclusions arrived at by the court below, it cannot be finally determined what judgment should be entered, until it is ascertained whether the appellant Norton is entitled, in order to protect his lien, to enter a judgment in favor of the defendant Parker. It follows that, notwithstanding the correctness of the decision upon the principal question in the case, the judgment as entered must be reversed, and a new trial granted, without costs in this court.