Deering v. Schreyer

Appellate Division of the Supreme Court of New York

Deering v. Schreyer

52 N.Y.S. 342, 30 A.D. 609

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 10, 1898

StatusPublished

Cited by1 cases

This text of 52 N.Y.S. 342 (Deering v. Schreyer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Deering v. Schreyer, 52 N.Y.S. 342, 30 A.D. 609 (N.Y. Ct. App. 1898).

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Opinion

INGRAHAM, J.

As we have determined upon the appeal from the order confirming the referee’s report that the proceeding is unauthorized and must be dismissed (52 N. Y. Supp. 203), it follows that the judgment entered upon the order confirming the referee’s report must be vacated. It is not necessary to determine whether or not it was regular to enter a judgment upon such an order. We think, however, that rule 27 of the General Rules of Practice does not authorize the entry of a formal judgment in a special proceeding. That rule does not provide for the entry of a judgment on an order, but merely allows an order directing the payment of a sum of money to be enrolled and docketed as if it were a judgment. It seems to me clear that under the provisions of the Code, if an action is commenced by the service of a summons, the relief granted to either par[343]*343ty is evidenced by the final judgment. Where the appropriate remedy is by petition, and the final order is entered directing a party thereto to pay a sum of money to the party in whose favor the order is entered, either party is entitled to have the order enrolled and docketed as a judgment; but a final order in a special proceeding cannot be the basis of a separate and independent judgment.

The order appealed from should therefore be reversed, with $10 costs and disbursements, and the motion to vacate the judgment entered by the petitioner granted, with $10 costs. All concur.

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INGRAHAM, J.

As we have determined upon the appeal from the order confirming the referee’s report that the proceeding is unauthorized and must be dismissed (52 N. Y. Supp. 203), it follows that the judgment entered upon the order confirming the referee’s report must be vacated. It is not necessary to determine whether or not it was regular to enter a judgment upon such an order. We think, however, that rule 27 of the General Rules of Practice does not authorize the entry of a formal judgment in a special proceeding. That rule does not provide for the entry of a judgment on an order, but merely allows an order directing the payment of a sum of money to be enrolled and docketed as if it were a judgment. It seems to me clear that under the provisions of the Code, if an action is commenced by the service of a summons, the relief granted to either par[343]*343ty is evidenced by the final judgment. Where the appropriate remedy is by petition, and the final order is entered directing a party thereto to pay a sum of money to the party in whose favor the order is entered, either party is entitled to have the order enrolled and docketed as a judgment; but a final order in a special proceeding cannot be the basis of a separate and independent judgment.

The order appealed from should therefore be reversed, with $10 costs and disbursements, and the motion to vacate the judgment entered by the petitioner granted, with $10 costs. All concur.

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52 N.Y.S. 342, 30 A.D. 609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deering-v-schreyer-nyappdiv-1898.

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