Mehl v. . Vonderwulbeke

New York Court of Appeals

Mehl v. . Vonderwulbeke

46 N.Y. 539, 1871 N.Y. LEXIS 294

CourtNew York Court of Appeals

DecidedNovember 28, 1871

StatusPublished

Cited by2 cases

This text of 46 N.Y. 539 (Mehl v. . Vonderwulbeke) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mehl v. . Vonderwulbeke, 46 N.Y. 539, 1871 N.Y. LEXIS 294 (N.Y. 1871).

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Opinion

Bapallo, J.

The order made at General Term reversed the judgment at Special Term absolutely, granting no new trial. It could not, therefore, regularly be appealed from as an order. The proper mode of reviewing it was to cause judgment of reversal to be perfected, and to appeal from that judgment. The order alone. is not a complete judgment. Judgment in pursuance of the order should have been perfected by being entered by the clerk in the judgment book. The order would then form part of the judgment roll. (Code, sections 279, 280, 281.)

Eo such judgment having been perfected, the objection *540 taken by the counsel for the respondent that the appeal was premature, must be sustained.

We should be induced to give the appellant an opportunity to rectify this omission did we think that the conclusion of the General Term was erroneous. But after a careful examination we are of opinion that it was not. If the only difficulty in the case consisted of the apparent want of equity in compelling the defendant to deliver a deed of his farm before the whole of the consideration of the sale became payable, a judgment might be so framed as to obviate that objection. But the second objection stated in the opinion of the court below, is insuperable. From the time of the alleged breach a part of the subject-matter of the contract has been constantly undergoing change, and the lapse of time has rendered a specific performance, according to the terms of the contract, impossible. The term of years which the defendant was to receive, as a part of the consideration, has now. expired; and it is, and was at the time of the trial, impracticable so to frame a judgment as to enable the defendant to receive the stipulated consideration for the sale of his farm. The case is not one in which a decree of specific performance would do equity between the parties. If the plaintiff is entitled to relief, an action for damages is the appropriate remedy.

We think, therefore, that it would be of no .avail to allow the appellant to perfect the record, and that the appeal should be dismissed with costs.

All concur.

Appeal dismissed.

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Bapallo, J.

The order made at General Term reversed the judgment at Special Term absolutely, granting no new trial. It could not, therefore, regularly be appealed from as an order. The proper mode of reviewing it was to cause judgment of reversal to be perfected, and to appeal from that judgment. The order alone. is not a complete judgment. Judgment in pursuance of the order should have been perfected by being entered by the clerk in the judgment book. The order would then form part of the judgment roll. (Code, sections 279, 280, 281.)

Eo such judgment having been perfected, the objection *540 taken by the counsel for the respondent that the appeal was premature, must be sustained.

We should be induced to give the appellant an opportunity to rectify this omission did we think that the conclusion of the General Term was erroneous. But after a careful examination we are of opinion that it was not. If the only difficulty in the case consisted of the apparent want of equity in compelling the defendant to deliver a deed of his farm before the whole of the consideration of the sale became payable, a judgment might be so framed as to obviate that objection. But the second objection stated in the opinion of the court below, is insuperable. From the time of the alleged breach a part of the subject-matter of the contract has been constantly undergoing change, and the lapse of time has rendered a specific performance, according to the terms of the contract, impossible. The term of years which the defendant was to receive, as a part of the consideration, has now. expired; and it is, and was at the time of the trial, impracticable so to frame a judgment as to enable the defendant to receive the stipulated consideration for the sale of his farm. The case is not one in which a decree of specific performance would do equity between the parties. If the plaintiff is entitled to relief, an action for damages is the appropriate remedy.

We think, therefore, that it would be of no .avail to allow the appellant to perfect the record, and that the appeal should be dismissed with costs.

All concur.

Appeal dismissed.

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46 N.Y. 539, 1871 N.Y. LEXIS 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mehl-v-vonderwulbeke-ny-1871.

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