Clute v. Knies — 6 N.Y. St. Rep. 865

Majority

p. 865

ISABELLA B. CLUTE, App’lt, v. JACOB KNIES, impl’d, Resp’t.

Headnote

Judgment—Ejectment—When judgment opened, modified or vacated.

Appeal from order granting motion to open and vacate judgment.

Thomas J. Olute, for app’lt; Albert Matthews, for resp’t.

The plaintiff in this action could not equitably be allowed to hold her judgment for mesne profits after the judgment in the action of ejectment has been vacated; neither would it be equitable to allow the plaintiff tp be deprived of the equitable relief which she has succeeded in obtaining by a reformation of the undertaking.

The judgment should be allowed to remain so far as the equitable relief is concerned, and also to the extent of the taxable costs, but should be set aside ■so far as it is a judgment for mesne profits in the ejectment suit upon the defendant’s stipulating in case a new action is brought upon the undertaking to recover the mesne profits, that the judgment heretofore obtained will not be pleaded in bar or offered in evidence as a defense to such action.

As thus modified, order appealed from affirmed without costs.

If such stipulation is not given, order appealed from reversed with costs.