Majority
p. 328(134 App. Div. 452.) RECTOR, ETC., OF ST. STEPHEN’S PROTESTANT EPISCOPAL CHURCH OF CITY OF NEW YORK v. RECTOR, ETC., OF CHURCH OF THE TRANSFIGURATION IN CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. November 12, 1909.) Argued before INGRAPÍAM, LAUGHLIN, CLARICE, HOUGHTON, and SCOTT, JJ.
Headnote
1. Appeal and Errob (§ 154*)—Decisions Reviewable—Judgment by Assent.While a party may always appeal from a judgment in his favor, if it be less favorable than he deems himself entitled to, he may not appeal from a judgment to which he has assented; and whether he has assented to a judgment as entered is to be determined from the record.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 957-967; Dec. Dig. § 154.*]
2. Judgment (§ 309*)—Resettling—Striking Out Erroneous Recital.
Where a judgment does not follow the prayer of the complaint, and is not what the successful party desired, but rather what the court deemed should be entered, a recital that it was entered on motion of the successful party’s attorney is erroneous, and should be stricken out on motion. • [Ed. Note.—For other cases, see Judgment, Cent. Dig. § 600; Dec. Dig. § 309.*]
«For other cases see samé topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r. Indexes
Appeal from Special Term, New York County.
Action by the Rector, Churchwardens, and Vestrymen of St. Stephen’s Protestant'Episcopal Church of the City of New York against the Rector, Churchwardens, and Vestrymen of the Church of the. Transfiguration in the City of New York. Erom an order denying plaintiff’s motion to resettle an order settling the findings and judgment, plaintiff appeals.
Reversed, and motion granted.
See, also, 130 App. Div. 166 , 114 N. Y. Supp. 623 .
• Arthur O. Townsend, for appellant.
Charles Blandy, for respondent.
The plaintiff appeals from an order denying its motion to resettle the judgment herein by striking out the recital that it was entered “on motion” of plaintiff’s attorney. While a party may always .appeal from a judgment in his favor, if it be less favorable than
p. 329
he deems himself entitled to, he may not appeal from a judgment to which he has assented. Whether or not he has assented to the judgment as entered is to be determined from the record, and there are recent decisions under which the present plaintiff apprehends that the recital in the judgment that it was entered “on motion” of its attorney may serve to prevent a successful appeal. The judgment in question is unusual in its provisions, and does not follow the prayer of the complaint, and it is quite evident that, in its present form, it is not what the plaintiff desires, but is what the court deemed should be entered. Under these circumstances it is inappropriate to recite that the judgment was entered on motion of plaintiff’s attorney, for it evidently was not. To strike out the words objected to by plaintiff will conform the judgment to the facts, and leave either party, or both, free to appeal, without embarrassment arising from an erroneous recital.
The order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion granted, with $10, costs.