Whiteside v. Noyac Cottage Ass'n — 52 N.Y. St. Rep. 775

Majority

p. 775

Newton E. Whiteside et al., App'lts, v. The Noyac Cottage Association, Resp't.

(Supreme Court, General Term, First Department,

Filed April 14, 1893.)

Headnote

1. Judgment—Failure to submit proposed findings.

A denial of a motion to set aside a judgment made on the ground that appellant, through mistake or inadvertence, failed to submit proposed findings in time, is not reversible error, especially where all the questions sought to be raised can be presented on the exceptions to the decision.

2. Same—Dismissal on the merits.

The mere fact that the words “ on the merits,” appear in one of the recitals does not make the judgment one dismissing the complaint on the merits, where such words do not appear in the judgment itself.

Appeal from order denying plaintiffs’ motion to vacate and set aside the judgment and resettle the decision, in order to submit a request to find and have the words “ on the merits ” stricken out.

Eugene D. Hawkins, for app’lts; William C. Reddy, for resp't.

The failure of appellants, through mistake or inadvertence, to submit proposed findings in time would not entitle them, as a matter of right, even though the trial judge had the power, to set aside the judgment; and, as the judge correctly held that all the questions sought to be raised could be presented upon exceptions to the decision on appeal from the judgment, no injury was done to appellants by a denial of the motion.

With respect to the second part of the motion, to have the words “on the merits” stricken out, it is sufficient to add that these words do not occur in the judgment, and their appearance as one of the recitals does not raise the same question as would have been presented had there been a judgment dismissing the complaint on the merits. We think, therefore, that the order appealed from should be, in all respects, affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.