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Reichenberg v. Interurban St. Ry. Co.

90 N.Y.S. 384 Court N.Y. App. Term Decision date 1904-11-10 English

Delivered by FREEDMAN, P. J.

Contents

Majority

p. 384
(45 Misc. 387)
REICHENBERG v. INTERURBAN ST. RY. CO.
(Supreme Court, Appellate Term.
November 10, 1904.)

Headnote

1. Appeal—Right to Maintain.
A plaintiff who, on his motion, obtained an amendment to a judgment for defendant so as to make the judgment one of dismissal for failure of proof, cannot appeal from the judgment as corrected, it superseding the original judgment and being for plaintiff’s own benefit.
Appeal from Municipal Court, Borough of Manhattan, Tenth District.
Action by Dena Reichenberg against the Interurban Street Railway Company. From a judgment as corrected, plaintiff appeals.
Appeal dismissed.
See 84 N. Y. Supp. 523 .
Argued before FREEDMAN, P. J., and BISCHOFF and FITZGERALD, JJ.
I. Henry Harris, for appellant.
Henry W. Goddard and William E. Weaver, for respondent.

This case was submitted to the justice for decisipn as of'May 11, 1904, and on May 16, 1904, he-rendered judgment for the defendant. On May 29, 1904, the plaintiff served the defendant with an order to show cause issued by the said justice and returnable May 23, 1904, requiring the defendant to show cause why the judgment rendered herein should not be amended and corrected to read, “Complaint dismissed for failure of "proof,” and it was annexed in the moving affidavit annexed to said order to show cause that the “judgment for defendant” had been entered through inadvertence, and that it was the intention of the trial justice “not to give a judgment for the defendant on the merits, but that he did not believe she had shown facts sufficient to constitute a cause of action, and that his intention was to dismiss the complaint, not on the merits, but because a cause of action had not been proven.” It does not appear that there was any opposition to this motion. An order was therefore entered, which recites “that it is ordered that the said motion be, and the same hereby is, in all respects granted, and the judgment corrected so as to read, instead of ‘Judgment for the defendant/ ‘Complaint dismissed/ upon the ground and for the reason that the decision made was inadvertent, in that it was not intended to conclude the plaintiff.” The notice of appeal herein states that the plaintiff “appeals from the judgment entered in the office of the clerk of the above entitled court on May 16, 1904, in favor of the defendant and against the plaintiff, and from the judgment as amended and. corrected by order of Justice Murray, signed on June 2, 1904, which reads ‘Complaint dismissed/ etc.” This appeal must be regarded as an appeal from the judgment as amended and corrected by the order aforesaid, as such judgment supersedes and takes the place of the first judgment entered. The judgment thus appealed from is one amended and corrected and entered upon plaintiff’s own

p. 385
motion, is for her own benefit, and it enables her to begin another action for the same cause, and in such a case the plaintiff has no right of appeal. Hooper v. Beecher, 109 N. Y. 609 , 15 N. E. 742 ; Marvin v. Marvin, 11 Abb. Prac. N. S. 97; Breenbergv. Blumenthal, 60 How. Prac. 62.

Appeal dismissed, with costs. All concur.

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