Schaefer v. Fisher

221 A.D. 880

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1927
• Status: Published

Opinion

The parties having stipulated in writing that this case may be decided by a court of four justices, the decision is as follows: Judgment dismissing the complaint upon the merits, as modified by order entered June 23, 1926, modified by directing that the complaint be,dismissed without prejudice, and as so modified affirmed, without costs. Order, in so far as it denies motion to make the decision conform to findings and conclusions, reversed and motion granted, without costs. We are of opinion that the release executed by Blanche Morange Rausch did not terminate the trust (Matter of Wentworth, 230 N. Y. 176; Matter of United States Trust Co., 175 id. 304), and that Blanche Morange Rausch has a remainder in the estate of her father, subject to being divested. There can, however, be no determination of this action upon the merits for the reason that, after the trial and before judgment, the sheriff of the county of Westchester was stricken out as a party plaintiff, after which judgment could not be entered as in a judgment creditor’s action for the reason that Blanche Morange Rausch was not a party defendant and the action was brought prior to the return of the execution. Young, Lazansky and Hagarty, JJ., concur; Kapper, J., dissents, being of opinion that there was no valid judgment obtained by the publication, and that the judgment should be affirmed and not modified. Settle order on notice.