Majority
p. 890Ambrose J. Agate, Plff., v. Caroline E. House, individually and as Ex’rx of Ann Eliza Agate, Def’t. (Supreme Court, General Term, First Department, Filed May 12, 1893.)
Headnote
Judgment—Effect of beyebbal of intbblocutoby judgment.Upon the reversal of an interloutory judgment in favor of plaintiff and for an accounting of rents in an action to establish a trust in real estate, and the ordering of a new trial, the final judgment entered after such accounting, whose only foundation is the existence of the interlocutory judgment, necessarily falls and should be stricken from the record on motion;
Application by defendant to strike from the record the final judgment herein, after denial of motion for such relief by the special term with leave to renew at general term.
p. 891
Action to establish a trust in favor of plaintiff in certain real estate and for an accounting of rents and profits. On a trial of the issues an interlocutory judgment was entered in favor of plaintiff and ordering an accounting, which was had and final judgment entered. The interlocutory judgment was reversed on appeal and a new trial ordered.
George W. Blunt, for pl’ff; Page & Taft, for def’t.
We are of that the reversal of the interlocutory judgment and the ordering of new trial in the action the final judgment, whose only foundation was the existence of the interlocutory judgment, necessarily fell, and that the special term should have stricken said judgment from the record, upon motion being made for such relief. In view of the denial of such application by the special term with permission to apply to the general term, although we think it was entirely unnecessary under the prayer for further and other relief contained in the motion papers herein, we think the motion should be granted striking from the record the said final judgment.
Van Brunt, P. J., Pollett and Barrett, JJ., concur.