Clark v. Clark — 52 N.Y. St. Rep. 228

Majority

p. 228

Martha E. Clark, Resp't, v. Frederick K. Clark, App'lt.

(Supreme Court, General Term, First Department,

Filed March 17, 1893.)

Headnote

Judgment—Date on.

Where a judgment is dated on the day on which the court directed it to be entered, it is proper, and the date will not be changed.

Appeal from two orders; the one denying defendant’s motion to alter the final decree herein, and the other denying his motion to resettle the former order.

F. K. Clark (Howard T. Marston and David F. Eilau), of counsel), for app’lt; Thornton, Earle & Kiendls (Charles M. Earle, of counsel), for resp’t.

It is claimed that the entered herein exceeds the prayer and allegations of the complaint. An inspection of the complaint, however, shows that this claim is entirely unfounded, and that all the relief granted in the decree was prayed for. It is further urged that this action was brought to quiet title, and that certain allegations necessary to such an action were not contained in the complaint in question. It may be doubtful whether any such question can be raised upon this appeal. If the allegations in the complaint were insufficient, it was the duty of the defendant to demur to the same. But the action is not" founded upon any such theory. It was a bill to have adjudged null and void certain instruments which had been given by the plaintiff to the defendant, and to enjoin him from attempting to assert rights by reason of such instruments, and that is all that was adjudicated. The order appealed from denying the motion to strike out portions of the decree should be affirmed, with ten dollars costs and disbursements.

The appeal from the order denying the motion to resettle said order is also equally without merit. The question as to the right of the appellant to have the date of the decree changed to the time when it was made, filed and entered does not possess any greater merit, as the decree was dated upon the day upon which the court directed the judgment to be entered. This order, therefore, should also be affirmed, with ten dollars costs and disbursements.

O’Brien and Follett, JJ., concur.