Heath v. New York Building Loan Banking Co. , 91 Hun 170 ( 1895 )

BROWN, P. J.

This action was before this court at the February term of the present year, upon an appeal from an order which resettled the findings of the court, and modified the judgment which had been entered. The facts are sufficiently stated in the opinion then delivered, and in the opinion delivered upon the appeal from our order to the court of appeals. Heath v. Banking Co., 84 Hun, 302, 32 N. Y. Supp. 454; Id., 146 N. Y. 260, 40 N. E. 770. After the decision of the court of appeals, the defendant moved at special term for an order directing (1) a sale of the premises, pursuant to the provisions of the judgment; (2) for an extra allowance; (3) for the appointment of a receiver of the rents of the property pending the advertisement of the sale. At the same time the plaintiff moved for a new trial. The order appealed from denied the defendant’s motion, and granted a new trial. c

We are of the opinion that the order cannot be sustained. The judgment in the action was dated June 5, 1894, and was duly entered in the clerk’s office on June 8, 1894, and a copy thereof and notice of entry were served on June 11, 1894. A motion for a new trial, founded upon an allegation of error in a finding of fact or ruling upon the law made by the judge upon the trial, must be made before the expiration of the time within which an appeal can be taken from the judgment. Code Civ. Proc. § 1002. An appeal from a final or interlocutory judgment must be taken within 30 days after service upon the attorney for the appellant of a copy of the judgment appealed from. Section 1351. A party may be relieved from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect within one year after notice thereof. Section 724. The order to show cause upon which the plaintiff’s motion was made was dated June 15, 1895, and the motion was made upon the errors and exceptions taken upon the trial, and upon the evidence and weight of evidence; and the fact that there was no evidence to sustain the findings in favor of the defendant, and upon the fact that the decision in favor of the defendant ivas contrary to equity, to good conscience, and to law. Section 724 of the Code was not applicable to the case, but if it could be deemed so, the motion having been made after the expiration of a year from the receipt of notice of the judgment, the court Avas without power to entertain it. The time to appeal from the judgment had expired long before the notice of motion was served, and the court was also without power to entertain the application on the grounds stated in the moving papers.

It was claimed upon the argument that the judgment which had been entered in the action was interlocutory, and that, as defendant’s application was for a final judgment, the'plaintiff would haAre had the right to appeal therefrom had its motion been granted, and therefore section 1002 of the Code did not apply. We think the judgment was final. It settled and adjudicated every question at issue between the parties. It allowed plaintiff to pay the amounts stated within six months, and obtain a reconveyance of the property; but, upon failure to make such payments, the premises were to be sold, and the plaintiff foreclosed of his rights therein, and the proceeds of the sale brought into court, and applied in the usual manner. It contained every provision essential to an execution of the decision of the court, except to direct the manner of sale. There ivas no question between the parties left to be decided. It was essential that the court should direct how and by what officer the sale of the property should be made, and the defendant’s application therefor should have been granted.

The order must be reversed, with $10 costs and disbursements, with leave to the defendant to renew its motion. All concur.