Agate v. House — 23 N.Y.S. 716

Majority

p. 716

AGATE v. HOUSE.

(Supreme Court, General Term, First Department.

May 12, 1893.)

Headnote

Appeal—Revetisal—Effect of.

In an action to establish a trust in land and for an accounting of rents- and profits, an interlocutory judgment was entered declaring plaintiff entitled to the land, and ordering an accounting, and sifter the accounting final judgment was entered for plaintiff. Held, that on a reversal of the interlocutory" judgment the final judgment is a nullity, and should Le-stricken from the records on motion.

Action by Ambrose J. Agate against Caroline E. House individually and as executrix of the estate of Ann Eliza Agate, deceased. The action was originally brought against decedent alone,

p. 717

to establish a trust in favor of plaintiff in certain realty held by defendant, and for an accounting of the rents and profits of the property. After a trial of the issues an interlocutory judgment was entered declaring plaintiff entitled to a conveyance of the property, and ordering an accounting, and after the accounting was had and reported by a referee final judgment was entered for plaintiff. On appeal the interlocutory judgment was reversed, and a new trial ordered. 46 Hun, 677 , mem. Defendant’s application to strike from the records the final judgment after the reversal of the interlocutory judgment was denied at special term, with leave to renew the same at general term. Application granted.

Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.

George W. Blunt, for plaintiff.

Page & Taft, for defendant.

We are of opinion that upon the reversal of the interlocutory judgment and the ordering of new trial in the action the final judgment, whose only foundation was the existence of the interlocutory judgment, necessarily fell, and that the special term should have stricken said judgment from the record, upon motion being made for such relief. In view of the denial of such •application by the special term with permission to apply to the general term, although we think it was entirely unnecessary under the prayer for further and other relief contained in the motion papers herein, we think the motion should be granted striking from the record the said final judgment.