Parker et al. v. Linden et al.(Supreme Court, General Term, First Department.Headnote
1. Motions—Service of Notice.Code Civil Proc. N. Y. § 780, requiring eight days’ notice of a motion “or of any other proceeding in an action before a court or judge, ” does not apply to a motion at special term, upon less than eight days’ notice, to settle the form of a judgment then recovered, and to direct the entry thereof.
An application at the foot of a decree will only be permitted for the purpose of carrying into effect a judgment already entered, and not for the purpose of adjudicating any matter which might have been considered and determined upon the trial.
Appeal from special term, Mew York county.
Action by John Parker and Robert Graham, executors of James Linden, deceased, against Maria Linden and others, to construe the will of James Linden. It was found as a fact that Jane Smith, one of the devisees in said will named, had gone to New Zealand, and had not been heard from in upwards of 50 years, and, as a conclusion of law, that she had died, without issue and intestate, before the testator. It was also found, as a conclusion of law, “that the executors were to take possession of and collect the rents of the real estate only for the purpose of accumulating sufficient funds to enable them to pay all bequests given and work ordered to be done by the testator in his will, and that when these purposes of the testator shall have been accomplished, as far as the same can be accomplished, it will then be their duty to relinquish the possession of the real property of the testator to his surviving devisees and heirs at law, and, if they shall elect to take such possession,, they may apply at the foot of this decree, on notice to the other parties hereto, and on such further proof as the court may require, for an order directing the executors to relinquish the possession of said real property to them. ” Subsequent to the signing of the findings, but prior to the entry of the judgment, Jane Smith, the devisee named in the will, who had been served by advertisement, and by the findings been declared dead, moved, upon an affidavit properly verified before the United States consul at Auckland, N. Z., setting up that she was a half-sister of testator, and one of the devisees named in his will, for leave to come in and defend the action. The motion was granted, and she was given until August 16, 1890, within which to answer the complaint, notices of appearance on her behalf being served on July 7, 1890. On the same day (July 7th) notice of application for possession of the real property in the hands of the executors and of entry of judgment was served by the attorneys for defendants, Lythgoe & Kenrick, returnable in two days. The notice was returned by plaintiffs’ attorney as irregular, but judgment was, on the 16th day of July, 1890, entered by the attorneys for said Lythgoe & Kenrick, the name of Jane Smith being omitted from the title of the action. This judgment differed from the findings, in that it declared that nothing further remained to be done by the executors, and directed them to turn over the trust property to the defendants, Lythgoe & Kenrick. Thereupon the attorney for the executors immediately moved to vacate the judgment as ¡premature, the case being still at issue; as irregular, in not being in accordance with the findings, in determining a trust upon the request of part of the cestuis que trustent only, and in containing an order unsustained by evidence made upon two days’ notice. The motion was denied, and plaintiffs appeal.
Argued before "Van Brunt, P. J., and Brady and Daniels, JJ.Isaac N. Miller, for appellants. P. <6 J). Mitchell, (A. J. Skinner, of counsel,) for respondents Lythgoe & Kenrick. Edward S. Peak, for respondent Maria Linden. Byron Vanderhoven, for respondent Jane Smith. A. A. Vanhorenberg, for respondent Sarah Fraser.
The papers presented upon this appeal are so meager that it is with great difficulty that the court has been able to get at the precise position of the parties in respect to this motion. There is no question that the court, after the decision of an action at special term, may, upon a less notice than eight days, settle the form of the judgment, and direct the entry thereof, and therefore the order appealed from cannot be reversed upon the ground of irregularity. But we think that, under the pretext of an application at the foot of the decree, no such substantial alteration of the original judgment can be permitted, nor can a judgment be entered relating to a subject-matter which might have been a subject of investigation upon the trial, and which, if the rights of the parties demanded, should then have been considered. It is only as to matters arising subsequent to the judgment for the purpose of carrying into effect the judgment already entered that an application at the foot of the decree can be permitted. In the case at bar, without any proof and without any trial, a substantial right of the plaintiffs is adjudicated upon and determined adversely to them. This, we think,- the court had no power to do. The order amending the judgment should therefore be reversed, and the application for such relief denied, with $10 costs and disbursements. All concur.