Howatt v. Howatt

and upon the 4th day of October a copy was served upon the defendant. Upon the said 4th day of October the plaintiff served a notice of trial for a term of the Supreme Court sitting in Ulster county, which began upon the 21st day of October. . At the opening of court the plaintiff not responding the case was stricken from the calendar. Thereafter a motion was made by the plaintiff to restore the same to the calendar, which motion was denied by the justice presiding. Upon the application to restore the case to the calendar, it was stated in the affidavit of the plaintiff that the defendant had not complied with the conditiqn of the order opening the default and had not paid the costs or the back alimony. It will be borne in mind that the 20 days within which the defendant was allowed to comply with the condition of the order did not expire until the 24th day of October. Meantime and upon the 18th day of October, the corespondent, Martha A. .Baeder, served a notice of appearance, and demanded a copy of the complaint. This copy of the complaint was served upon the 21st' day of October upon the corespondent, and her answer was served upon the plaintiff’s attorney upon the 9th day of November. Ujpon the 1st day of November the defendant appealed from the order vacating the judgment or from the conditions imposed in such order, but failed to serve his printed papers, and a motion was made to the Appellate Division to dismiss the appeal. Thereafter, and upon the 7th day of January, 1913, by consent of both parties, the appeal was dismissed in the Appellate Division. Upon the 20th day of January the plaintiff made application for final judgment, reciting the history of the case substantially as is hereinbefore set forth. This was opposed both by the defendant and by the corespondent. The motion was argued upon the 8th day of February, and final judgment was granted and entered upon the 17th day of February. In that final judgment it was stated that the plaintiff’s delay in the applying therefor had been sufficiently excused. It is from this final judgment that the appeal is taken both by the defendant and the corespondent.

[1-4] First, considering the appeal of the defendant Howatt, it is apparent that the interlocutory judgment is not reviewable upon this appeal. First, because it is not specified in the notice of appeal. Code of Civil Procedure, § 1301. Again, because it was entered by default, the defendant not appearing before the trial court to oppose the application. The appeal then simply brings in question the plaintiff’s practice and right to final judgment after it had been directed by the interlocutory judgment. It is first contended that the delay beyond the three months and fifteen days had not been excused. From the statement of the proceedings in the case, however, it would appear to have been abundantly excused. It is claimed, however, that section 1774 of the Code of Civil Procedure requires a special order excusing the delay. While the practice would have been more regular to have entered an order excusing the .delay and directing a final judgment, the practice adopted of entering the judgment under the signature of the trial judge is the practice very commonly adopted, and the practice which to my mind answers every requirement of the Code. But, were it otherwise, the court would now direct nunc pro

tunc an interlocutory order to be entered in order to sustain this judgment. It is contended on behalf of the defendant that the interlocutory judgment was once opened and the plaintiff is not in a position to move for final judgment until an order of the court had been made revoking the opening of that judgment by reason of the failure of the plaintiff to comply with the conditions therein named. But the order itself provided that upon the failure to comply with such conditions the application to open the judgment should be deemed denied. Moreover, the granting of the final judgment in this case upon papers showing these facts may itself be deemed a direction of the court that the interlocutory judgment be reinstated so far as may be necessary to authorize the entry of the final judgment.

[5] The main contention of the defendant, however, is that the conditions in the order have been waived. A nurqber of cases have been cited to the effect that a stay of proceedings for nonpayment of costs is waived by service of a notice of trial. In the case at bar, however, this was not simply a stay of proceedings. A favor had been granted upon the compliance with certain conditions. The court will be slow to hold that the performance of those conditions have been waived simply by the service of a notice of trial, so that, if the conditions were performed and the interlocutory judgment vacated, the plaintiff might have a speedy determination of the issue. It would be unjust to the plaintiff to require him to lose the benefit of the October term of a country circuit in order to save his rights to the performance of the conditions of the order opening the interlocutory judgment. In fact, the defendant himself did not so interpret the order, because upon the 1st of November he appealed from that part-of the order imposing those conditions, which appeal would have been wholly unnecessary if the conditions had been waived by the plaintiff by any proceedings that he had taken in the action. The Special Term found no evidence of any intention on the part of the plaintiff to waive the conditions imposed upon the opening of the interlocutory judgment, and we are of the opinion that his conclusion was justified upon all the facts of the case. The defendant has shown no reason why the final judgment was not properly granted.

[6] As to the corespondent, it may well be doubted whether the right given her under section 1757 of the Code of Civil Procedure survives the entry of interlocutory judgment. After the entry of the interlocutory judgment against the original defendant, the court would have undoubted power upon his application to open the judgment and to allow him to defend, and such orders have frequently been made. In the case at bar, however, no such application was made. This corespondent asserts the right to come in even after the entry of the interlocutory judgment and to have the issues reopened and retried, in order that she may assert her defense as far as her complicity is charged. But this position is sustained neither by reason nor by authority. The rights of a corespondent appearing at a later state of the action has been fully considered in the casé of Boiler v. Boiler, 111 App. Div. 240 , 97 N. Y. Supp. 609 . It is there held that a corespondent comes into the action as she finds it and without special applica

tion cannot have a retrial of issues already determined. The case of Dicks v. Dicks, 155 App. Div. 418 , 139 N. Y. Supp. 1068 , and Shaw v. Shaw, 155 App. Div. 252 , 140 N. Y. Supp. 109 , were both cases decided upon special application by the respondent, and in neither one of those cases was the case of Boiler v. Boiler, supra, questioned.

We have considered the other questions raised by the appellants, and find no reason for reversing the final judgment entered herein. The judgment should, therefore, be affirmed, with one bill of costs against the defendant Howatt. All concur.