Coles v. Carroll

248 A.D. 618

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1936
• Status: Published

Opinion

Resettled order denying appellant’s motion to vacate and set aside a judgment entered April 10, 1931, and the order entered May 29, 1934, affirmed, with ten dollars costs and disbursements. Appeal from the original order dismissed. Carswell, Johnston and Adel, JJ., concur; Lazansky, P. J., and Hagarty, J., concur as to the dismissal of the appeal from the original order, but dissent and vote to reverse the resettled order and to grant the motion to vacate and set aside the judgment. This is a partition action. Plaintiff, in her complaint, alleged that she was the owner of an undivided one-fourth interest ip. the real property therein described and that the defendant-appellant was the owner of an undivided three-fourths part thereof. Other defendants were named in the action, six of whom appeared and served answers, all in the nature of general denials, demanding that the complaint of the plaintiff be dismissed, except that defendant Gaetano Borrelli asked, in addition to the dismissal of the complaint, that it be adjudicated that he owned all or a portion of the premises by reason of certain instruments of conveyance, including tax liens. The defendants did not serve their answers upon the defendant-appellant, who defaulted in appearing. It was adjudicated that the appellant had no right, title or interest in the property. We are of opinion that, in the absence of service of the defendants’ answers on appellant, a judgment so affecting her rights is void. (See Civ. Prac. Act, §§ 264 and 1022.)