Grant v. Hubbell

2 Jones & S. 224

• Court: The Superior Court of New York City
• Decided: March 2, 1872
• Status: Published

Opinion

Sedgwick, J.

The defendant Taylor is not, by section 320 of the Code, entitled to appeal from the order refusing to vacate the order complained of, because he is not a party aggrieved by such order, i The judgment obtained against Hubbell individually did not in its operation as a judgment affect Taylor. The order vacating this judgment did not, in its operation as an order, affect Taylor. Nor was he affected by the operation of any proceeding in the action before he was made a party. Whether he had or had not notice of them, none of them passed upon any right of his.

The appellant supposes that there was an attempt to impair his rights in this wise; that inasmuch, as claimed by him, the judgment entered against Hub-bell individually extinguished, by merger, the claim on which it was based, so vacating the judgment was an endeavor to revive that claim, and that the accompanying amendment of the summons and complaint, taken together with all else that was done, subjected him to the expense and trouble of resisting their claim as made against him and Hubbell jointly. But the appellant does not claim that any order was made adjudging, directly or by legal effect, that such claim was revived.

Until Taylor was made a party defendant by amendment, he was a stranger to the action and as we have said, nothing done in it affected him. By amendment he was made a party, and, having been served with the summons, was called upon to answer. This no more aggrieved him, than the making and serving any summons and complaint is a grievance to a defendant. Taylor may, if he shall so choose, plead that the former judgment has extinguished the original claim, and then for the first time there may be some adjudication upon this point. As yet no order has said anything upon it, nor can the proceedings all taken together be considered in favor of or against Taylor as an adjudication as to it.

The order denying the motion to vacate has not passed upon the question as to what was the legal effect upon Taylor’s right, of these orders vacating the judgment and amending the summons, &c. It only passed upon the question as to whether the orders asked to be vacated were properly made at the time they were made. In fine, no rights of Taylor in the matter have been the subject of adjudication, and therefore he has not been aggrieved.

The motion to dismiss appeal is granted, with costs.