Citation Numbers: 36 N.Y.S. 213, 91 Hun 170, 98 N.Y. Sup. Ct. 170, 71 N.Y. St. Rep. 136
Judges: Brown
Filed Date: 12/2/1895
Status: Precedential
Modified Date: 1/13/2023
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
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.