Schrader v. Fraenckel

Appellate Division of the Supreme Court of New York

Schrader v. Fraenckel

113 A.D. 395, 99 N.Y.S. 137, 1906 N.Y. App. Div. LEXIS 1432

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

DecidedMay 25, 1906

StatusPublished

Cited by1 cases

This text of 113 A.D. 395 (Schrader v. Fraenckel) 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

Schrader v. Fraenckel, 113 A.D. 395, 99 N.Y.S. 137, 1906 N.Y. App. Div. LEXIS 1432 (N.Y. Ct. App. 1906).

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Opinion

Patterson, J.:

This is an appeal from an order denying in part a motion made to correct a judgment roll. On a trial before a referee, judgment dismissing "the complaint was directed and entered. Thereafter the plaintiff moved to correct the judgment roll by requiring the defendant to insert therein certain findings of fact which the referee, had found in favor of the plaintiff but which had been omitted from the judgment roll; and also to remove therefrom the notice of motion for a reference, and the affidavits upon which that motion was presented. The court granted the motion, so far as to require the [396]*396insertion of the. findings of fact, but denied it as to striking out the affidavits and notice of motion for a reference. ' Those papers have no place-in a judgment roll. Section 123Y of the Code' of Civil Procedure provides what shall be'• inserted in a judgment roll, namely, “the summons; the pleadings,-, of copies thereof; the final judgment, and the interlocutory judgment, if any, or copies thereof; and each paper on file, or a copy thereof, and a copy of each order, which in any way involves the merits, or necessarily affects the judgment.” " The affidavits and notice of motion for -a reference do not affect the merits or the-judgment. The order of reference does-affect tfie judgment and is properly inserted in the judgment roll as it is the evidence of the-authority of the referee to act. The affidavits and notice of motion only incumber the record and should not be incorporated in the judgment roll, if objection is taken thereto. There is no object'in bringing them to the attention of the court. The making of the order of reference cannot be reviewed. It was ' granted upon the motion of the plaintiff who is, the defeated party in the action. The question is of very little practical importance in this case, but the plaintiff is technically, right and the order appealed t from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. .

O’Brien, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed,, with ten dollars costs and disbursements, and motion granted, with den dollars costs. Order filed.

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Patterson, J.:

This is an appeal from an order denying in part a motion made to correct a judgment roll. On a trial before a referee, judgment dismissing "the complaint was directed and entered. Thereafter the plaintiff moved to correct the judgment roll by requiring the defendant to insert therein certain findings of fact which the referee, had found in favor of the plaintiff but which had been omitted from the judgment roll; and also to remove therefrom the notice of motion for a reference, and the affidavits upon which that motion was presented. The court granted the motion, so far as to require the [396]*396insertion of the. findings of fact, but denied it as to striking out the affidavits and notice of motion for a reference. ' Those papers have no place-in a judgment roll. Section 123Y of the Code' of Civil Procedure provides what shall be'• inserted in a judgment roll, namely, “the summons; the pleadings,-, of copies thereof; the final judgment, and the interlocutory judgment, if any, or copies thereof; and each paper on file, or a copy thereof, and a copy of each order, which in any way involves the merits, or necessarily affects the judgment.” " The affidavits and notice of motion for -a reference do not affect the merits or the-judgment. The order of reference does-affect tfie judgment and is properly inserted in the judgment roll as it is the evidence of the-authority of the referee to act. The affidavits and notice of motion only incumber the record and should not be incorporated in the judgment roll, if objection is taken thereto. There is no object'in bringing them to the attention of the court. The making of the order of reference cannot be reviewed. It was ' granted upon the motion of the plaintiff who is, the defeated party in the action. The question is of very little practical importance in this case, but the plaintiff is technically, right and the order appealed t from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. .

O’Brien, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed,, with ten dollars costs and disbursements, and motion granted, with den dollars costs. Order filed.

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Bluebook (online)

113 A.D. 395, 99 N.Y.S. 137, 1906 N.Y. App. Div. LEXIS 1432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schrader-v-fraenckel-nyappdiv-1906.

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