Edell v. Edell

Appellate Division of the Supreme Court of New York

Edell v. Edell

258 A.D. 420, 17 N.Y.S.2d 55, 1940 N.Y. App. Div. LEXIS 8207

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

DecidedJanuary 12, 1940

StatusPublished

Cited by1 cases

This text of 258 A.D. 420 (Edell v. Edell) 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

Edell v. Edell, 258 A.D. 420, 17 N.Y.S.2d 55, 1940 N.Y. App. Div. LEXIS 8207 (N.Y. Ct. App. 1940).

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Opinion

Per Curiam.

The motion to dismiss the appeal on the ground that the order appealed from was made on appellant’s motion should be denied since it clearly appears from the order that the relief granted was not the relief sought by the appellant on her motion. (Bloch v. Bloch, 136 App. Div. 770, 774.) The order was the act of the court and it was not necessary or appropriate to recite that it was made on the motion of appellant’s attorney. This recital may be treated as surplusage. (Davis v. Fogarty, 134 App. Div. 500, 501; Norton & Siegel, Inc., v. Nolan, 276 N. Y. 392, 395, and cases cited.) Since the order denying defendant’s motion to serve a supplemental answer containing counterclaims against the plaintiff affected a substantial right of the defendant, the stay now in effect should be continued pending the disposition of the appeal from the order herein. Cleary v. Douglas-Guardian Warehouse Corp. (253 App. Div. 790) is distinguishable from the instant case. In the Cleary case the movant made a motion and secured most of the relief prayed for and then entered the order and appealed from the whole order.

[421]*421All concur. Present — Crosby, P. J., Cunningham, Dowling, Harris and McCurn, JJ.

Motion to dismiss appeal denied and motion for stay of proceedings pending hearing and determination of appeal granted.

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Per Curiam.

The motion to dismiss the appeal on the ground that the order appealed from was made on appellant’s motion should be denied since it clearly appears from the order that the relief granted was not the relief sought by the appellant on her motion. (Bloch v. Bloch, 136 App. Div. 770, 774.) The order was the act of the court and it was not necessary or appropriate to recite that it was made on the motion of appellant’s attorney. This recital may be treated as surplusage. (Davis v. Fogarty, 134 App. Div. 500, 501; Norton & Siegel, Inc., v. Nolan, 276 N. Y. 392, 395, and cases cited.) Since the order denying defendant’s motion to serve a supplemental answer containing counterclaims against the plaintiff affected a substantial right of the defendant, the stay now in effect should be continued pending the disposition of the appeal from the order herein. Cleary v. Douglas-Guardian Warehouse Corp. (253 App. Div. 790) is distinguishable from the instant case. In the Cleary case the movant made a motion and secured most of the relief prayed for and then entered the order and appealed from the whole order.

[421]*421All concur. Present — Crosby, P. J., Cunningham, Dowling, Harris and McCurn, JJ.

Motion to dismiss appeal denied and motion for stay of proceedings pending hearing and determination of appeal granted.

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Bluebook (online)

258 A.D. 420, 17 N.Y.S.2d 55, 1940 N.Y. App. Div. LEXIS 8207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edell-v-edell-nyappdiv-1940.

Opinion

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