Opinion
Argued May 1, 1893
Decided June 6, 1893
David Thornton for appellant.
Edward Winslow Paige, for respondent.
The defendant, Frances A. Gesner, is the only party who appeals from the judgment in this case. She seeks a review here of the action of the courts below in the distribution of the proceeds of certain real estate in the city of New York, in which she had an interest. The appellant was a party to the suit of Chester v. Jumel ( 125 N.Y. 237), in which case the principle upon which such distribution should be made was decided, and the judgment in this case is in accordance with the decision of this court in that case. This judgment has been before the court upon the appeal of the plaintiffs and has been affirmed. ( Tauziede v. Jumel, 133 N.Y. 614.) This case upon the merits is governed by the decisions above referred to, unless the stipulation, which is now to be referred to, controls. It appears that the appeals from the judgment of the Special Term to the General Term, in this and the Chester case, were progressing side by side when, in January, 1889, a motion was made to dismiss the appeal in this case. On that motion the court made an order that, unless the appellant Gesner stipulated within ten days that she would abide the event of the appeal in the Chester case, to which she was a party, the appeal in this case should be and was thereby dismissed. The appellant complied with that order and gave the stipulation. The appeal in the Chester case was thereafter decided by the General Term, and the judgment of the Special Term modified in such a way as to be more favorable to Mrs. Gesner. The plaintiffs and respondents then voluntarily entered a judgment modifying the original judgment in this case in the same way and in accordance with the decision, but, upon an appeal to this court in the Chester case, the modification ordered by the General Term was reversed and the original judgment affirmed. Thereafter a motion was made to the General Term by the respondents in the appeal from the judgment in this case for a reargument of the appeal in that court. This motion was opposed, but granted, and upon the hearing the judgment of the Special Term was affirmed, and in this way Mrs. Gesner lost the benefit of the modification by the General Term in the Chester case, which she claims was secured to her by the stipulation, notwithstanding the reversal of that modification in this court. The violation of the stipulation is now urged by her counsel as ground of reversal of the judgment appealed from.
There are, we think, two answers to this contention:
1. The order of the General Term which allowed the respondents to bring the case to argument, notwithstanding the stipulation, has not been appealed from. It was in making that order that the alleged error was committed, if at all. It does not enter into the judgment and cannot be reviewed on appeal from it. That order, in effect, relieved the respondents from the stipulation and vacated it, and cleared the way for the application to the case of the decision of this court in the Chester case. It put the case before the court for a hearing in the same way as if the stipulation had not been made, and if that order violated any legal right or, without power, revived an appeal which, as matter of law, had been terminated by the act of the parties themselves, it was reviewable.
2. The appeal from the judgment of the trial court gave the General Term jurisdiction which was not lost by the stipulation. That simply provided that the appeal then pending should be decided in the same way as the appeal in the Chester case. But the court did not lose control of the case. Assuming that this stipulation was to abide the decision of the General Term in the Chester case, and that it was not intended to apply to the ultimate decision of the appeal in this court, it was within the power of the General Term, after this court had passed upon the questions in the Chester case, to relieve the parties, or any of them, from the stipulation and order the case to be argued and then apply the principle of distribution decided by this court to be the correct one. At best it was but a stipulation in an action that the parties would abide the result of a future decision in another case which, when made, was thought to be in some respects erroneous. The court had the power then, in the exercise of a sound discretion, to modify or vacate the stipulation, and upon a hearing of the appeal to apply the law as finally determined in the other case. That, in effect, was what was done in the case at bar, and as it touched no legal right which the party had, the judgment should be affirmed.
All concur.
Judgment affirmed.