Union Trust Company of New York, as Executor, etc., of William Washington Cole, Deceased, Respondent, v. Margaret C. Cole and Others, Respondents, Impleaded with Jessie Richards and Others, Appellants

Union Trust Company of New York, as Executor, etc., of William Washington Cole, Deceased, Respondent, v. Margaret C. Cole and Others, Respondents, Impleaded with Jessie Richards and Others, Appellants. First Department, November 18, 1921. Judgments — modification — motion to modify judgment denied where determination of appeal therefrom by others gives relief asked for on motion. A motion to modify a judgment on the ground that the attorney who appeared for the appellants failed to serve a notice of appeal from the judgment will be denied where the determination of an appeal from the judgment taken by other parties affects all of the class of which the appellants are a part and will inure to their benefit although they did not appeal, and where the appellants could not obtain a more favorable result than they will obtain through the modification of the judgment on the other appeal. Appeal by the defendants, Jessie Richards and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of April, 1921, resettling an order entered in said clerk’s office on the 19th day of March, 1921, denying defendants’ motion for an order vacating and setting aside sub-paragraphs (3), (4) and (5) of paragraph 6 of a judgment entered in said clerk’s office on the 6th day of December, 1919. Root, Clark, Buckner & Howland [Grenville Clark of counsel; Emory R. Buckner and Robert P. Patterson with him on the brief], for the appellants. Miller, King, Lane & Trafford [William G. Barr of counsel], for the plaintiff, respondent. F. Herbert Wadsworth [Grant C. Fox of counsel], for the defendants, respondents. [MAJORITY — Page, J.:] Page, J.: The appellants’ counsel, on the argument of the appeal, stated that the motion was made to vacate the judgment because the attorney who appeared for them had failed to serve a notice of appeal from the judgment, he representing, as was contended, conflicting interests. Our determination of the appeal taken by the guardian ad litem, for the infant defendants, decided herewith (198 App. Div. 534), affects all of the class of which the appellants herein are a part, and will inure to their benefit although they did not appeal. (Matter of Union Trust Co. [Detmold], 219 N. Y. 537.) If we should reverse the order and grant the motion, the appellants could not obtain a more favorable result than they will obtain -from a modification of the judgment directed on the other appeal. The appellants may have leave to withdraw their appeal, without costs. Clarke, P. J., Laughlin, Dowling and Merrell, JJ., concur. The appellants may have leave to withdraw their appeal, without costs.