Opinion
January 12, 1940.
Appeal from Supreme Court of Monroe County, KENYON, J.
Merwin Morehouse, for the appellant.
Ira H. Morris, for the respondent.
Present — CROSBY, P.J., CUNNINGHAM, DOWLING, HARRIS and McCURN, JJ.
The motion to dismiss the appeal on the ground that the order appealed from was made on appellant's motion should be denied since it clearly appears from the order that the relief granted was not the relief sought by the appellant on her motion. ( Bloch v. Bloch, 136 App. Div. 770, 774.) The order was the act of the court and it was not necessary or appropriate to recite that it was made on the motion of appellant's attorney. This recital may be treated as surplusage. ( Davis v. Fogarty, 134 App. Div. 500, 501; Norton Siegel, Inc., v. Nolan, 276 N.Y. 392, 395, and cases cited.) Since the order denying defendant's motion to serve a supplemental answer containing counterclaims against the plaintiff affected a substantial right of the defendant, the stay now in effect should be continued pending the disposition of the appeal from the order herein. Cleary v. Douglas-Guardian Warehouse Corp. ( 253 App. Div. 790) is distinguishable from the instant case. In the Cleary case the movant made a motion and secured most of the relief prayed for and then entered the order and appealed from the whole order.
All concur.
Motion to dismiss appeal denied and motion for stay of proceedings pending hearing and determination of appeal granted.