¶1We are of opinion that upon the reversal of the interlocutory judgment and the ordering of new trial in the action the final judgment, whose only foundation was the existence of the interlocutory judgment, necessarily fell, and that the special term should have stricken said judgment from the record, upon motion being made for such relief. In view of the denial of such •application by the special term with permission to apply to the general term, although we think it was entirely unnecessary under the prayer for further and other relief contained in the motion papers herein, we think the motion should be granted striking from the record the said final judgment.
23 N.Y.S. 716
Agate v. House
Decided May 12, 1893
New York Supreme Court · decided 1893-05-12
Action by Ambrose J. Agate against Caroline E. House individually and as executrix of the estate of Ann Eliza Agate, deceased. The action was originally brought against decedent alone, to establish a trust in favor of plaintiff in certain realty held by defendant, and for an accounting of the rents and profits of the property.
Decided 1893-05-12