Bacon v. Lowman

8 A.D. 612, 40 N.Y.S. 1139, 1896 N.Y. App. Div. LEXIS 2413

Opinion

Landon, J.:

Appeal from a judgment of foreclosure and sale and from an intermediate order allowing defendants to answer. This order recites that it was made “ by consent of counsel ” after the case had been moved for trial. It further appears that when the motion was made the defendants had not the right to answer as a matter of course.

The evidence supports the findings. The objection of the executors to the testimony of Stanchfield was in violation of the stipulation recited in the order of the Special Term which permitted the defendants to answer. This order recites that it was made upon consent of counsel and upon stipulation that objection under section 829 of the Code of Civil Procedure should not be taken. The notice of appeal seeks to bring this order and its recitals before us for review; but we do not review orders granted upon consent. The appealing party should have either opposed the motion for the order or made some motion to resettle, vacate, modify or correct it, and, if unsuccessful, there would probably be an order that we could review. The other ob- Sections do not strike us as of force. The judgment should be affirmed, with costs. All concurred, except Parker, P. J , not sitting.