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Hermann v. Ludwig

George Hermann, Respondent, v. Kate Ludwig Et Al., Appellants, Impleaded With Another

Hermann v. Ludwig, 125 N.E. 541 (N.Y. 1919)
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Court
New York Court of Appeals · State Highest Courts
Decided
December 9, 1919
Judges
<italic>Per Curiam</italic>.
Citations
125 N.E. 541227 N.Y. 6321919 N.Y. LEXIS 808
Headnotes
Appeal — when judgment entered upon order of reversal insufficient — case remitted to Supreme Court for perfection of judgment — not reviewable by Court of Appeals on appeal from order alone. When the Appellate Division in reversing a judgment makes new findings of fact and conclusions of law and by its order provides for equitable relief and costs and directs that judgment be entered accordingly, the entry of a judgment which merely recites the reversal of the judgment and adjudges recovery of costs is insufficient, and the Court of Appeals, upon appeal therefrom, will remit the case to the Supreme Court for perfection of the judgment. The decision of the Appellate Division is not reviewable by an appeal from the order made thereat alone, but must be from the judgment entered upon the order of reversal.
Summary
Appeal from a judgment entered April 12, 1912, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Per Curiam

*633 Per Curiam.

Plaintiff brought this action in equity to establish a will jointly executed by himself and wife on September 30, 1895, also for other relief. The complaint was dismissed at the Trial Term. From the judgment dismissing complaint on the merits, plaintiff appealed to the Appellate Division. The latter court reversed the judgment entered upon the decision of the Trial Term, reversed numerous findings made thereat and made new findings of fact and conclusions of law favorable to the plaintiff. The order of the Appellate Division provided for equitable relief and that plaintiff recover costs and disbursements of the court below and of “ this court ” to be taxed, and - further that “ judgment be entered accordingly.” Plaintiff thereupon entered a judgment which recited the reversal of the judgment below and adjudged that plaintiff recover of the defendants $829.99 costs and have execution therefor, but failed to enter the judgment directed by the order of the Appellate Division. Upon the appeal herein counsel for both parties argued at length various questions determined by the findings made by the Appellate Division. The record discloses a failure on the part of plaintiff’s counsel to comply with the order of the Appellate Division which directed a judgment to be entered in accordance with the order made thereat, and as required by the Code of Civil Procedure (Sections 1345, 1355), thus leaving as the only judgment sought to be reviewed a judgment for costs. Even if we should affirm the judgment appealed from, such action would not enable the plaintiff to enforce the relief which he was awarded by the Appellate Division. The order alone is not a cúmplete judgment but forms a part of the judgment roll. Judgment in pursuance of the order should have been perfected. It is not the province of this court to pass upon the questions involved in a case like the one at bar upon such a judgment as the one entered in this action. The decision of the Appellate Division herein is not reviewable by an appeal from the order *634 made thereat alone, but must be from the judgment entered upon the order of reversal.

The case is, therefore, remitted to the Supreme Court for such action as may be deemed proper.

Hiscock, Ch. J., Chase, Collin, Hogan, McLaughlin, Crane and Andrews, JJ., concur.

Ordered accordingly.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1923: 11927: 11933: 119232026peak 1923 · 1

Relies on it most ⓘ

  1. Frank McWilliams, Inc. v. Ætna Insurance120 Misc. 117 (N.Y. Sup. Ct. 1923)
  2. In re the Estate of White148 Misc. 740 (N.Y. Sur. Ct. 1933)
  3. Meyers v. Anwal Realty Corp.222 A.D. 65 (1927)

Most recent

  1. In re the Estate of White148 Misc. 740 (N.Y. Sur. Ct. 1933)
  2. Meyers v. Anwal Realty Corp.222 A.D. 65 (1927)
  3. Frank McWilliams, Inc. v. Ætna Insurance120 Misc. 117 (N.Y. Sup. Ct. 1923)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

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