Hawks v. Warren — 117 N.Y.S. 1097

Majority

p. 1097

HAWKS v. WARREN et al.

(Supreme Court, Appellate Division, Fourth Department.

July 6, 1909.)

Headnote

Appeal and Error (§ 817^[1] )—Hearing.

The court will not permit attorneys to agree that plaintiff’s appeal may be first heard, and that, in a certain event, defendant’s appeal may after-wards be brought on for hearing.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 817.^[1] ]

Appeal from Judgment on Report of Referee.

Action by Mary G. Hawks against Charles E. Warren and others. From the judgment, plaintiff appeals.

Appeal not considered.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

E. C. Crowley, for appellant.

Bradley & Merritt and A. Edmund Lee, for respondents.

We should refuse to consider or determine the appeal as now presented to us.

No points are presented on the part of the respondents. Forty pages of points are presented bn the part of the appellant. On,page 5 of these points appears the statement that the respondents, named in this record have also appealed from this judgment, but, by virtue

p. 1098

of an agreement between the attorneys, they are not to appear in opposition to plaintiff’s appeal, and, after a year in a certain event, they are to prosecute their appeal, which will require the making of a case and exceptions, while plaintiff’s appeal 'is taken and presented here on the judgment roll, without any case and exceptions. I think this will not answer. All appeals that are to be presented from this judgment should be heard at the same time. '"The court will not permit the attorneys to agree that the plaintiff’s appeal may be first heard, and, in a certain event, the defendants appeal may afterwards be brought before the court for hearing.

The action -was brought to determine conflicting claims to real property. Plaintiff was in possession, but had no legal title. She claimed to be the heir of the deceased owner by adoption, and also claimed under an agreement with the deceased owner that, if she would live with him and care for him, he would give her the property. The referee (now Judge Pound) decided there was no adoption that enabled plaintiff to inherit the property from .the deceased, and that she was not entitled to judgment establishing any rights under the alleged contract, that the defendants were the heirs of the deceased owner, but were not entitled to a judgment barring the plaintiff’s alleged rights in the property. The plaintiff wants us to determine the questions of law argued hy her, and upon the referee’s findings of fact order full judgment in her favor and against defendants, without hearing such defendants upon these questions. It is queer that the attorneys for defendants should have made the agreement referred to in the appellant’s points and letter inclosed.

I am in favor of refusing to consider the appeal in view of this statement in the points and the letter, which we may assume to be true. All concur.