Spiehler v. Asiel ( 1894 )

CULLEN, J.

These are appeals from two orders of the special term, —one adjudging the plaintiff guilty of contempt in failing to comply with a decree of specific performance; the other from an order denying a motion subsequently made by the plaintiff to set aside said decree. The motion to punish for contempt was. heard and decided before the motion to vacate the decree. The order adjudging the plaintiff in contempt was properly made. The motion on the pleadings was heard and the judgment rendered at a term of the court held in the county of New York. The venue of this action was laid in Westchester county. The application for judgment could therefore not be properly made in the county of New York, except by consent. But such consent was in fact given by the submission of the application without objection. Even if consent had not been given, it was a mere irregularity, and did not render the judgment void. It was the duty of the plaintiff, if aggrieved, to seek to set the judgment aside; he could not disregard it. The motion to vacate the judgment should have been granted. The complaint alleged defendant’s default, and prayed for a specific performance of a contract for an exchange of lands. The answer denied defendant’s default, alleged that the title of the plaintiff to his property was defective; and prayed for specific performance, or, in lieu thereof, damages. After the action had been pending for some time, the defendant tendered a stipulation withdrawing his objections to plaintiff’s title, and noticed a motion for judgment on the pleadings and stipulation. The motion was submitted to the court and the decree granted. This decree ordered the plaintiff to perform the contract, convey his property, and pay certain moneys of rents, and also ordered the defendant to convey his property to the plaintiff. After issue had been joined, the orderly way would be to bring the cause on for trial. We think, however, that the cause might have been submitted by the consent of the parties for summary determination on the pleadings and stipulation. But the judgment was evidently granted under a misapprehension. It was granted on the recital in the decree of the consent of the parties. It is not now questioned that the consent extended only to the submission of the application, not to the granting of the judgment. There has been, therefore, no judicial determination of the rights of the parties, and the decree granted by error should not stand, even though it be such as could properly be rendered. The plaintiff, instead of promptly applying for relief from the judgment, contumaciously resisted it, and terms should now be imposed as a condition for the relief sought. The order denying motion to vacate judgment should be reversed, and judgment vacated, on plaintiff paying within 10 days the costs of both, motions at special term and the costs and disbursements of both appeals therefrom; and, on failure to comply with such conditions, the orders appealed from should be affirmed, with $10 costs on each appeal and disbursements. All concur.