James F. Guilfoyle, Respondent, v. Catharine E. Pierce, Appellant

James F. Guilfoyle, Respondent, v. Catharine E. Pierce, Appellant. Decree amendment of, by a court presided over by a judge other than the one who entered it. Where it appears that the person to whom premises are directed to be conveyed by a decree had assigned her interest therein before the making of such decree, it is improper for the court, although presided over by a judge other than the one who entered the decree,, to refuse (in the absence of objection by parties having an adverse interest) to amend such decree by directing the premises to be conveyed to the grantee of such person. Van Brunt, P. J., dissented upon the ground that there was no power in the court to amend, in a substantial particular, a decree entered by the direction of another judge and that in the present case the application was unnecessary. Appeal by the defendant, Catharine E. Pierce, from so much of an order of the, Supreme Court, entered in the office of the clerk of the, county of New York on the 12th day of June, 1896, as-denied her motion that David: J. Lees, as receiver, convey to Frances M. Pierce the premises No-. 511 Madison street, Brooklyn,, New York, mentionéd and described in a judgment entered in the above-entitled action, which provided, among other things, as. follows: " “ It is further ordered, adjudged and decreed, that said David J, Lees, receiver, within ten days after the service of a copy of this judgment, reconvey, execute, acknowledge and deliver to Catharine E. Pierce, the defendant in this action, a deed conveying to her in fee simple the house and lot known as Ho. 541 Madison street in the city of Brooklyn, county of Kings and State of Héw York, being the same premises conveyed by the said Catharine E.. Pierce, to said David J. Lees, receiver, pursuant to the order of this court ' dated the 26th day of October, 1893, and also being the same premises heretofore conveyed by Mary A. Guilfoyle and James F„ . Guilfoyle, her husband (the plaintiff), to Catharine E. Pierce, by deed dated April 12th, 1893, and recorded in the office of the register of Kings county, city of Brooklyn, State of Hew York, in liber 2172 of Conveyances, page 280, April 13th, 1893, and also deliver to said defendant all papers in his possession affecting said premises. “ It is further ordered, that the clerk of the court* of Kings, in the city of Brooklyn, be and he hereby is directed to mark the notice of lis pendens, filed in this action in his office on the 18th day of September, 1893, vacated, canceled and discharged.” The judgment referred to was granted at a Special Term held by Russell, J., while the order appealed from was granted at a Special Term held by Beach, J. The moving affidavits stated that the action was brought for the purpose, among other things, of compelling a reconveyance of certain premises situated ■ in Brooklyn, and asked that the judgment therein should be amended by inserting a provision therein directing the receiver to. transfer said real estate to Frances M. Pierce, to whom the defendant had deeded said property before the entry of said judgment, instead of to said defendant,, which provision was alleged to' have been omitted through inadvertence. An appeal had been taken by the plaintiff, prior to this application, from the said judgment to the Appellate Division of the Supreme Court, in which it was affirmed, and thereafter, pending an appeal to the Court of Appeals, a stay of proceedings was granted. Thomas M. Tyng, for the appellant. Franklin Bien, for the respondent. [MAJORITY — Williams, J.:] Williams, J.: The part of the order appealed from should be reversed and an order made directing the receiver to convey the property to the transferee of the defendant. It was a proper order to make in the case unless somebody having an adverse interest jshould make an objection. The respondent had no interest to make any such objection. He had no interest whatever in the property. The plaintiff’s wife was not a party to the action, and had no right to object to the order. The order could not, in any event, have injured her, because , she is fully protected by the Us pendens tiled by her in the action brought by "her against the receiver. The order should, therefore, be modified by striking out the provision denying this part of the motion, and by inserting a direction to the receiver to make a conveyance to Frances H. Pierce, the defendant’s grantee. The appellant should have costs of the appeal. Rumsey and O’Brien, JJ., concurred; Van Brunt, P. J., dissented. [DISSENT — Van Brunt, P. J. (dissenting):] Van Brunt, P. J. (dissenting): I dissent from the opinion of Hr. Justice Williams. I do not think there was any power in the court to amend the decree entered by another judge in a substantial particular. It might have been proper practice to have applied at the foot of the decree for a further and different direction, but there was no power in the court to amend the decree. I further dissent upon the ground that the application was entirely unnecessary. If the defendant in this action desired that this property should he conveyed to some other person after it had been conveyed to her by the receiver, she might have made the conveyance herself. It was, therefore, entirely unnecessary that the court should be called upon to examine this application for the purpose of determining as to whether it was proper, upon this record, to make the order in question. The order should be affirmed. Order modified and order entered as directed in opinion, with ten dollars costs and disbursements to the appellant.