Dawson v. Parsons , 81 N.Y. Sup. Ct. 221 ( 1893 )

PUTNAM, J.

This appeal is taken from a clause of the order made June 13th in this action, and from the whole of the order of July 11, 1893. On the granting of the first order, the appellant appeared by counsel, and the order recites that no one objected thereto. We had supposed that it was well settled that an appeal does not lie from an order so entered by consent. Flake v. Van Wagenen, 54 N. Y. 25; Innes v. Purcell, 58 N. Y. 388; Atkinson v. Manks, 1 Cow. 693. By consent of the defendant, an order of the supreme court has been entered providing “that the plaintiff and defendants in this action, and each of them, finite with the receiver in the conveyance of said premises upon the completion of the purchase by the purchaser.” This order remains in full force. If the appellant, at special term, had made the proper objections to the order, or the provision therein above quoted, which is appealed from, we might" consider whether such a provision could have been properly made before the rendition of final judgment. In that case it may be doubted whether, until the rights of the parties were determined by the judgment, the defendant should be compelled to execute a conveyance of his interest .in the real estate in question. But no such point was taken at special term. The appellant consented to the order in advance of the judgment. So consenting, as to him. the order should be deemed to have the same force and effect as if entered after judgment. It cannot be doubted that by consent such an order can be made as well before as after judgment, and with the. same force and effect. It seems to follow that as an order of the supreme court which appellant thus consented to, and hence cannot appeal from, was duly made, which is in full force, directing a conveyance by appellant, he was bound, on a proper demand being made and a proper conveyance tendered, to execute the same, and the failure to do so was a contempt. It is not clear that defendant should be compelled to execute a conveyance with a covenant contained therein against his own acts, or otherwise. But on examining the affidavit of appellant it does not appear that he made any objection to signing the deed tendered him on the ground of the covenant therein. He objected to joining in any conveyance, stating that he “is unwilling, by joining in any conveyance of the said property, to sanction in any way, or to confirm, the mode by which his interest in the said property has been taken out of his hands; and deponent also respectfully questions the power of the court, by order in this action, to compel deponent to execute a conveyance of his property, where he has made no contract of sale, and has expressed his disapproval of the proceedings by which it is proposed to consummate the sale.” It would there-, fore appear that the objection to the deed tendered as containing a personal covenant was not made as a ground of refusing to sign the same. If appellant wished to object to the personal covenant contained in the deed, it was his duty to make the objection when the instrument was tendered to him. If he wished more time to examine the paper, he should have then so stated. It would appear from the papers before us that he merely declined to sign any deed. Our conclusion is that the order to which appellant consented has the same force as if made after final judgment, and defendant is bound to obey it; and inasmuch as he does not appear to have •objected, when the deed was presented to him for signature, to the covenant contained therein, but objected to signing any deed, that the order of July 11th, which was in fact made for the purpose of enforcing the order of June 13th, was properly granted. The order does not, however, compel the defendant to sign the deed tendered to him for execution. It directs him to execute that deed, or a proper conveyance of his interest in the premises therein described, to Amasa J. Parker, as receiver. A proper conveyance is one called for by the order of June 13th, and probably may be without covenants. The order should be affirmed, with costs and disbursements.

MAYHAM, P. J., concurs. HERRICK, J., not acting.