Levy v. La Fountain — 81 N.Y.S. 468

Majority

p. 468

LEVY v. LA FOUNTAIN et al.

(Supreme Court, Appellate Division, Third Department.

March 11, 1903.)

Headnote

1. Mechanic’s Lien—Erroneous Judgment—Vacation—Appeal.

Where, in an action to foreclose a mechanic’s lien, a money judgment was erroneously entered against one defendant, which was not authorized by the decision of the court, defendant’s remedy was by motion addressed to the special term to strike out the same, and not by appeal.

Appeal from Special Term, Clinton County.

Action by William M. Levy against Peter La Fountain and another for the foreclosure of a mechanic’s lien. From a judgment in favor of plaintiff, defendants appeal.

Modified.

Argued before PARKER, P. J., and CHASE, CHESTER, and LYON, JJ.

S. L. Wheeler, for appellants.

John B. Riley, for respondent.

We find no error in this record, except wherein the judgment provides for the recovery of a money judgment against the defendant Low, and for the recovery of any deficiency arising upon a sale from her. These provisions were not authorized by the decision of the court. The judgment containing them was signed by the clerk, and not by the justice who tried the case. The respondent conceded on the argument that the judgment was erroneous in this respect, and consented that we should strike these provisions out. He insisted, however, that the proper remedy was by motion addressed to the Special Term to strike out, and not by appeal. In this we agree with him.

The judgment should be modified by striking out such provisions, and, as modified, affirmed, with costs.