Clason v. Baldwin — 36 N.Y. St. Rep. 982

Majority

p. 982

Josephine F. Clason et al., Ex’rs, Resp’ts, v. Elizabeth S. Baldwin, Ex’rx, App’lt.

[Supreme Court, General Term, First Department,

Filed February 11, 1891.)

Headnote

Judgment—Irregularity.

The report of the referee in this case contained findings of fact which established defendant’s liability as executrix, and a conclusion of law that plaintiffs were entitled to judgment against her, omitting her designation as executrix, but contained no direction as to the judgment to be entered. The judgment was entered against her in her representative character. Held, that the findings of fact did not sustain the conclusion of law, but that as the report contained no direction as to the judgment to be entered, the judgment entered was wholly unauthorized and irregular.

Appeal from a judgment in favor of the plaintiffs entered on the report of a referee.

Isaac JY. Miller, for app’lt; Thomas M. Wyatt, for resp’ts.

This action was brought against the defendant as the executrix of her husband, who was the assignee a lease demising the premises No. 42 Sheriff street in the city of New York. The facts found by the referee establish her liability

p. 983

prima facie and the second conclusion of law found by the referee is that the plaintiffs as executors are entitled to judgment against the defendant, omitting her designation as executrix. Section 1022 of the Code provides: “ That the decision of the court or report of the referee upon the trial of the whole issues must state separately the facts found and the conclusions of law; and it must direct the judgment to be entered thereupon.” There was no such direction made by the learned referee and the judgment must have been entered by the clerk, who is not gifted with the authority in such a case to enter it according to his own views.

This case is an illustration of the absolute necessity of the direction referred to, inasmuch as the judgment entered is against the defendant, Mrs. Baldwin, as executrix, when the finding declares that the plaintiffs are entitled to a judgment against her individually. This case is somewhat similar to Putzel v. Shulhoff, reported in 8 E. Y. Supp., 651; 29 E. Y. State Rep., 26, in which the general term refused to review the judgment, and remanded it to the special term, having been tried in that branch of the court and not before a referee, to be decided as provided for. A somewhat similar disposition must be made of this case. The defendant appeals as executrix, thus assuming that the judgment was regular, but, nevertheless, takes the point on the appeal, through her counsel, that the judgment is not in accordance with the conclusion of law and wholly unauthorized, inasmuch as it ought to be against the estate which the defendant represents, when in fact the legal conclusion is against her individually, and there is no direction for entering the judgment, as required by the section of the Code already mentioned. The findings of fact do not authorize a judgment against her individually, but prima facie, assuming them to be correct, against her as executrix, to enter which, however, as already said, no direction is given. The judgment entered, therefore, was wholly unauthorized and is irregular.

The appeal must, therefore, be dismissed, and the case remitted for correction, but without prejudice to the right of the appellant to appeal from the judgment when it shall have been properly entered.

Van Brunt, P. J., and Daniels, J., concur.