Opinion
June, 1915.
Otto A. Samuels (Ralph H. Blum, of counsel), for appellant.
Anderson, Iselin Anderson (Outerbridge Horsey, of counsel), for respondent.
The plaintiff herein brought an action against the defendant in the City Court to recover the sum of $1,702.13 claimed by him to be upon deposit with the defendant to the credit of plaintiff's testator. The defendant set up as a counterclaim the execution of two notes by plaintiff's testator, amounting to the sum of $1,800, and averred that the defendant gave the testator credit for said notes upon the agreement by him that if any change occurred in the financial condition of said testator whereby his ability to pay was lessened, or in case of his failure or insolvency the notes, at the option of defendant, should become due immediately. The pleading further averred that prior to the death of said testator he became insolvent, etc.; that the defendant had exercised its aforesaid option; that no part of said notes has been paid, and demanded judgment against plaintiff for the sum of $97.87, being the difference between the amount on deposit to the credit of the testator and the amount of the notes.
The case came on for trial and resulted in the direction of a verdict for the plaintiff for the full amount of her claim, and a judgment was entered for that amount and also dismissing the counterclaim "upon the merits." A copy of the judgment and notice of entry was served upon defendant's attorneys on April 16, 1915. Subsequently a motion was made by the defendant for an order amending the judgment, and this motion was granted and the judgment amended by providing that instead of the counterclaim being dismissed upon the merits it be dismissed "as a setoff in this action but without prejudice to the claim of the defendant against the plaintiff for the sum of $1800." The amended judgment was entered on April 13, 1915, and on May 4, 1915, a copy thereof with notice of entry was served on defendant's attorneys.
On May 11, 1915, a notice of appeal from the judgment as amended was served upon the attorney for the plaintiff, who promptly returned the same as not having been served in time. Thereupon the defendant made a motion in the City Court for an order requiring the plaintiff to accept the notice of appeal and the undertaking given to secure the judgment, which motion was granted, and from the order entered thereon the plaintiff appeals. Concurrently with the taking of the appeal, the plaintiff has moved in this court to dismiss the appeal from the amended judgment, and the defendant having defaulted upon the hearing of the present appeal has also made a motion in this court to compel the plaintiff to accept service of the notice of appeal from the amended judgment. Both sides concede that the City Court had no power to make the order appealed from. Gersman v. Levy, 58 Misc. 174; affd., in 126 A.D. 126; Ziada v. Interurban St. R. Co., 97 A.D. 137; Phillips v. Hogan, 142 A.D. 205; Benjamin v. Brownstein, 79 Misc. 84. The order may therefore be reversed.
Upon the motion made in this court by the defendant to compel the plaintiff to accept the notice of appeal, the plaintiff claims that the amendment to the judgment was one of form only, and sets up in the moving papers on the motion to dismiss the appeal that the judgment as originally entered did not affect defendant's right to share in the estate, and that the record upon the trial shows that the claim of the defendant had been entered in the final account of the plaintiff in proceedings for the judicial settlement of the estate, and that upon the trial no claim was made as to the right of the defendant as a general creditor by reason of the two notes. The record upon the trial is not before this court, and the only question to be determined here is whether or not the amendment to the judgment was a material one, and that must be determined from the pleadings and the form of the judgment as it is conceded to have been entered. As originally entered, it is clear that it precluded the defendant from enforcing any claim against the estate of the plaintiff's testator, and was an effectual bar to the cause of action set forth in the counterclaim. The amendment therefore was one of substance and affected an important right of the defendant, and was in fact the true and final judgment entered in the action.
The cases of Buckley v. Whiting Mfg. Co., 136 A.D. 479 and Gasz v. Strick, 19 N.Y. St. Repr. 315, are authorities upholding the right of the defendant to appeal from an amended judgment. It follows that the motion to dismiss the appeal should be denied, and the motion to compel the plaintiff to accept service of the notice of appeal granted.
Order reversed, with ten dollars costs and disbursements. Motion to dismiss appeal denied, with ten dollars costs. Motion to compel plaintiff to accept service of notice of appeal from amended judgment granted, with ten dollars costs. Costs of one party to be set off against those of the other.
Order reversed, with costs.