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Breckenridge Company v. Perkins

Appellate Division of the Supreme Court of New York, First Department
Feb 1, 1897
14 App. Div. 629 (N.Y. App. Div. 1897)

Opinion

February Term, 1897.

Present — Van Brunt, P.J., Barrett, Rumsey, Williams and Patterson, JJ.


Order affirmed, with ten dollars costs and disbursements. —


The motion was to set aside the judgment as void. The judgment was not void merely because the judgment roll did not contain the proper papers. The judgment roll, as distinguished from the judgment, was irregularly made up, because it did not contain all the proper papers. The correct motion, however, was to amend it by inserting the proper papers. Thus the plaintiffs have mistaken their remedy. The motion which they made was properly denied, and the order appealed from should be affirmed. The defendants, it may be added, took an erroneous view of section 1221, subdivision 3. The referee did award the proper judgment upon the whole issue. He was not required to refer in his report to the judgment already given by the court upon the issue of law. The proper report to be made by the referee upon the whole issue was simply a report for the relief demanded in the complaint. Upon that report the postea should have recited the decision on the issue of law (that is, the order of October 28, 1893) overruling the demurrer to the reply. It should then have recited the order of reference of the whole issue, and the report on the whole issue. This should have been followed by an award of judgment upon the decision on the issue of law, and of final judgment upon the whole issue as reported by the referee. The order should be affirmed, with ten dollars costs and disbursements.


Summaries of

Breckenridge Company v. Perkins

Appellate Division of the Supreme Court of New York, First Department
Feb 1, 1897
14 App. Div. 629 (N.Y. App. Div. 1897)
Case details for

Breckenridge Company v. Perkins

Case Details

Full title:The Breckenridge Company, Respondent, v. James D. Perkins and Francis…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 1, 1897

Citations

14 App. Div. 629 (N.Y. App. Div. 1897)