Robinson v. Govers

VAN BRUNT, P. J.

Upon the previous argument of this appeal the court held that the order continuing the action should be reversed upon the ground that by the death of the plaintiff the same abated, and it is not necessary to rediscuss the questions then considered and determined. But since said argument and decision a motion has been made to resettle the order confirming the referee’s report herein by inserting the following recital therein before the operative part of the order:

“And a decision having been rendered herein bv Mr. Justice Patterson on the 15th of February, 1893, in the words and figures following, to wit: ‘The motion to confirm the report of the referee is granted, with the modifications hereafter suggested.' The plaintiff should be allowed the costs of the action, and an extra allowance of $150. Costs should not be awarded the defendant, but the guardian ad litem should be compensated, and $55 is allowed him. These costs and allowances are not to be charged against the gross sum awarded to the plaintiff, but in the same manner as if the property were sold. The defendants desiring to pay this gross sum must first pay these costs, and then deduct them from the whole value of the property as fixed by the referee, and the dower interest may then be calculated, for the purposes of final judgment, on the balance remaining after such deduction is made. That seems to be the rule in cases in which the property is sold, and the proceeds brought into court, (Schierloh v. Schierloh, 14 Hun, 573,) and it may equitably be made applicable in a case of this kind. ”

The question presented is, the plaintiff having died subsequent to the filing of this memorandum, by the court who heard the motion, and before its embodiment in an order, whether the situation has been in any respects changed from that which was presented by the record on the previous appeal. We think not. The memorandum in question was not the judgment of the court. It was simply an indication to the parties as to how the judgment to be entered upon the referee’s report should be framed, in order that it might be duly entered. This is apparent, if any indication was needed, from the language of the memorandum itself. It is that the plaintiff should be allowed certain things, that costs should be allowed to the defendant, that the guardian ad litem should be compensated, that the costs and allowances should not be charged, etc., clearly showing that the court, by the filing of this memorandum, which does not purport even to have been signed by the justice, was merely giving an indication as to how the order upon the motion should be framed; and, when the suggestions of the court were properly embodied in an order, then it directed its entry, which was the fact, because three days afterwards we find a formal order, entered by direction of the court, embodying the suggestions of the memorandum. This memorandum, clearly, was not a final judgment, tvhich prevented the action irom abating by the death of the plaintiff. The case of Knapp v. Roche, 82 N. Y. 366, holds that the memorandum of a decision handed down by the general-term, although signed by one of the judges, was not a judgment, but it was a mere authority to enter a judgment; that a formal judgment must be prepared, entered in the judgment book, and attested by the clerk’s signature, and a copy thereof annexed to the appeal papers, to constitute the judgment roll, in accordance with the provisions of the Code. So in the case at bar the memorandum in question was not an order. It did not pretend to be an order. It was a mere memorandum determining what should be the form of the order to be entered upon the motion in reference to the referee’s report. We think, therefore, that the position of the case remains unchanged; and, for the reasons stated in the opinion previously given upon the original appeal, the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.