Parker v. Linden — 36 N.Y. St. Rep. 844

Majority

p. 844

John Parker et al., App’lts; v. Maria Linden, App’lt, and Mark Lithgoe et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed February 11, 1891.)

Headnote

J UDGIDSNT—IRREGULABITY.

In an action to construe a will it was found that one of the devisees was dead, hut before entry of judgment said heir applied for leave to defend, which was granted, hut before her time to answer had expired judgment was entered. Held, that such judgment was irregular and should be set aside.

Appeal from judgment entered in this action, and from order denying plaintiffs’ motion to vacate the judgment as premature and for irregularity.

Action to construe a will. On the trial it was found that one Jane Smith, one of the devisees, who bad left the country and had not been heard from in fifty years, was dead. Thereafter, but before the

p. 845

entry of judgment, said Jane Smith applied for leave, to come in and defend, which, leave was granted, and she was given until August 16, 1890, to serve her answer. On the 16th of July, 1890, this judgment was entered, directing that the property be turned over by the executors to the respondents.

I. N. Miller, forapp’lts; A. J. SIcinner, for resp’ts.

The question upon the appeal from the order is whether the court should have vacated the judgment which had been entered herein, it appearing that at the time of the entry of the judgment the time to answer of one of the defendants had not expired. It does not seem necessary to discuss at length any such proposition.

It is true that upon the trial of the case there had been, an adjudication that this defendant was dead. But it would seem that she was very much alive, notwithstanding the adjudication, and that she had appeared in the action and had been granted leave to answer the complaint, which time to answer had not expired at the time of the entry of the judgment She was a necessary party to the action; she was not in default, and the judgment therefore was clearly irregular and should have been set aside.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to set aside the judgment granted.

As for the appeal from the judgment, a motion having been made to set that aside for irregularity in reference to the additions made thereto, which motion was denied, and upon appeal the order entered thereupon reversed and the motion granted, it is not necessary to consider the same.

The appeal, therefore, from the judgment should be dismissed, without costs.

Brady and Daniels, JJ., concur.