Hyperlawhypertext legal database Devlin v. Mayor 37 N.Y. St. Rep. 508

← Cases

Devlin v. Mayor

37 N.Y. St. Rep. 508 Court N.Y.C.P. Decision date 1891-04-06 English

Delivered by Bischoff, J.

Contents

Majority

p. 508
John B. Devlin, Adm’r, Resp’t, v. The Mayor, etc., of New York, App’lt, et al., Resp’ts.
(New York Common Pleas, General Term,
Filed April 6, 1891.)

Headnote

Judgment—Direction to enter.
Where the conclusions of law in a referee’s report clearly and unmistakably settle the form and amount of the judgment to be entered, this is a sufficient compliance with § 1022 of the Code, requiring a direction of the judgment to he entered.
Appeal from an order made at special term denying a motion made by defendant, The Mayor, etc., of New York, to restrain the plaintiff and the defendants other than The Mayor, etc., from entering judgment on the referee’s report upon the alleged ground that it does not direct the judgment to be entered thereon pursuant to § 1022 of the Code of Civil Procedure.
T. C. Cronin, for pl’ff, resp’t; Franklin Bartlett, for the Mayor, etc., def’t, app'lt; E. Schenk, for def’ts, resp’ts.

The third, fourth, fifth, sixth and seventh conclusions of law as set forth in the referee’s report, in concise and unmistakable terms, settle the form and amount of the several judgments to be entered in favor of the plaintiff and the defendants other than The Mayor, etc., of New York, and this is a sufficient compliance with the requirement of § 1022 of the Code of Civil Procedure that the report “must direct the judgment to be entered thereupon.” Hinds et al. v. Kellogg, 37 N. Y. State Rep., 356.

In this view of the main question presented upon this appeal, it is immaterial whether or not the defendants, The Mayor, etc., of New York, have waived the objection to the report arising from the alleged omission of the referee to direct the judgment by moving to compel the parties entitled thereto to enter judgment upon the report. Our conclusion that the report is sufficient to authorize the entry of judgment preserves the right to cause such entry to be made without regard to the alleged waiver.

The order appealed from must be affirmed, with costs.

Allen and Pryor, JJ., concur.