McCall v. McCall

258 A.D. 1036, 16 N.Y.S.2d 955, 1940 N.Y. App. Div. LEXIS 8728

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1940
• Status: Published

Opinion

Judgment and order affirmed, with costs. Memorandum: On the facts presented the Special Term was justified in denying the motion to resettle the order denying the motion to set aside the sale. Technical objections to the validity of the final judgment, not raised against the interlocutory judgment, from which no appeal has been taken, are urged upon us as grounds for reversal of the final judgment. These objections affect no substantial right of the appellant and may be disregarded. Moreover, appellant on the motion for final judgment consented to the confirmation of the referee’s report of sale and that conveyances be made to the purchasers on the sale and her attorney applied for and received an allowance for his services in the partition action. Having, in effect, consented to the entry of the final judgment and to a confirmation of the sale and having accepted benefits under the final judgment in the form of an allowance paid to her counsel, appellant cannot review the judgment on appeal. (Hooper v. Beecher, 109 N. Y. 609, 610.) All concur. (The judgment confirms the sale in a partition action and directs the distribution of the proceeds. The order denies a motion by defendant Hazel I. McCall for a resettlement of an order which denied a motion by Frank McCall to set aside the sale in the partition action.) Present — Crosby, P. J., Taylor, Dowling, Harris and MeCurn, JJ.