
    BENJAMIN WRIGHT, as Receiver, &c., Respondent, v. MARY A. NOSTRAND, et al., Appellants.
    
      Decided November 3, 1884
    
      Creditor's bill to remove obstruction to process— When accounting also decreed—Re-argument—presumption that general term have passed on merits—Irregularities in judgment appealed from—practice in regard to—what is matter of substance.—Order of court of appeals amending remittitur so as to read “ without prejudice to any application the defendant may be adroised to malee for relief to the court below "—construction of.
    
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by defendant from order denying motion to modify judgment.
    Motion for re-argument at general term.
    The plaintiff, as receiver of the property, &c. of Elbert Van Nostrand, appointed in proceedings supplementary to execution, brought this action, claiming as relief, that assignments of leasehold property, made respectively by Elbert Van Nostrand to one Oypert, and by Oypert to the defendant Mary A. Nostrand, be adjudged to be fraudulent against the creditors of Elbert Van Nostrand, and that the judgments under which the plaintiff was appointed receiver, be declared liens upon said real estate and chattels real, etc. ; that the sheriff of the city and county of New York be directed to sell the same under executions to be issued upon said judgments and pay over to the plaintiff the proceeds of such sales, to be applied to the payment of such judgments ; and that the defendant Mary A. Nostrand be required by the judgment of this court to account for and pay over the rents and profits received by her for the use and occupation of the premises, and the fair valuation of the use and occupation of said premises. The court at special term determined that the plaintiff was entitled to judgment declaring that the assignments that have been referred to, were fraudulent and void against the judgment-creditors of Elbert Van .Nostrand, that the plaintiffs in such judgments, or their successors, are at liberty to sell said premises, upon said judgment's, which are by the judgments declared to be liens upon the same, under executions to be issued upon said judgments to the sheriff of the city and county of New York; and also to judgment, against the defendant Mary A. Nostrand, for the amount of the rents and profits received by her for the use and occupation of said premises, from the time of the commencement of this action and “the filing of the lis pendens therein, to the time of the accounting hereinafter provided for, or such part thereof as will be sufficient to satisfy the judgments aforesaid.” And that it be referred to a referee named to take an.account of such rents and profits, and report the amount thereof, and on the coming in and confirmation of such report, the plaintiff may enter judgment against the defendant Mary A. Nostrand for the amounts of such rents and profits, applicable to the payment of the said several judgments. The defendants duly excepted to these conclusions of the court. A judgment was entered as directed by the court. The defendants appealed to the general term, where the' judgment was reversed. The case, with the ■ opinion of the court, is reported 47 Super. Ct. 441. The plaintiff appealed to the court of appeals, where the order of the general term was reversed and the judgment of the special term affirmed. After the opinion of the court of appeals was given, the attorney for defendants procured an order from a judge of the court of appeals, that the plaintiff show cause why “ the order and remittitur of the court of appeals should not be modified so as so provide for leave to the defendants to apply to the court below for a modification of its decree so as to efiminate therefrom the provisions requiring the defendants to account for the rents, issues and profits of the property transferred in accordance with the opinion of this court as to the nature of this action, and the rights of the plaintiffs herein, and further, why the defendant should not have leave to apply to the general term of the court below for a re-hearing and a determination of this cause upon the merits thereof and the weight of evidence affecting the same.” Upon the return of this order to show cause, the court of appeals ordered that the remittitur be so amended that it will read: “without prejudice to any application the defendant may be advised to make for relief to the court below.” Thereupon the counsel for defendants moved at special term for an order staying the proceedings of the plaintiff, until defendant could make an application to the next general term of this court, for a re-hearing and determination of this appeal upon the merits thereof; and also that the judgment entered herein at special term be re-settled and modified so as to efiminate therefrom all provisions relating to an account of the rents, issues and profits of the property therein described, and that the judgment be modified in other respects so as to make it conformable to the opinion of the court of appeals herein. The court below granted the motion as to staying proceedings for the purpose of a re-argument, but denied it, as to the judgment being modified. The appeal is now from the order so far as it denies the modification of the judgment, and the defendants also move for a re-argument of their appeal from the judgment.
    The court at General Term, said :—“ The ground that the defendants’ counsel urges as calling for are-argument at general term is, that the merits of the case have not been passed on, by the general term. The opinion of the general term, because it reversed the judgment upon certain questions of law, and did not advert to the merits, it is argued, shows that the general term did not consider the merits. This is not a necessary result. The presumption is that the court considered all the questions in the case, and among them the merits, and thought it proper not to reverse on the merits. But the defendants have lost nothing, for the opinion of the court of appeals considered the merits. It said, ‘ The conclusions reached by the trial-court upon the facts in the case are supported by the evidence therein, and the conclusions of law predicated thereon do not seem to be open to any legal exception.’ The motion for re-argument should be denied.
    1 ‘ It is further argued that the court below should have modified the judgment by striking from it, the provision that the defendant Mary A. Nostrand, the fraudulent assignee, account for the rents from the beginning of the action, and that the plaintiff have judgment against her for the amount in which she should be found accountable. It is argued that this should have been done on the intimations of the court of appeals on the subject. I do not find such an intimation. If it exists it is in the following part of the opinion : ‘ Second. The claim that the judgment originally entered in the action did not provide for a right of dower claimed to exist in favor of the defendant Mary A. Nostrand, in the property, etc., and that it was in other respects erroneous in form, were questions not properly before the general term and cannot be raised upon the appeal here. The remedy of the defendant, if any such irregularities exist, is by motion, and appeal from the order thereon, if the proper relief is not granted (Beardsley Scythe Co. v. Foster, 36 N. Y 561; Binsse v. Wood, 37 Ib. 526 ; Buck v. Remsen, 31 Ib. 383). The alleged dower right of Mary A. Nostrand is not affected by the judgment recorded herein.’ Is the provision that defendant Nostrand account for the rents alluded to in the quotation from the opinion ? Is it an irregularity ? Is it a matter of form % Is it like the cases cited ? Buck v. Remsen (34 N. Y. 383), is a case of an appeal from a judgment in replevin where the plaintiff having taken the goods from defendant at the beginning of the action, the verdict was for the defendant. It is to be assumed that the verdict was regular, for no objection was made to it. It assessed the value of the goods. The clerk, in entering judgment upon the verdict, incorrectly gave judgment for the value of the goods, in addition to awarding their return, instead of giving judgment in an alternative manner. This was said to make a question of form and practice which would become the subject of appeal, if upon motion the court declined to correct the form. The court below had not directed the form. The party below, if he acquiesced, could not afterwards object. Ño action of the court could be reviewed until it had been invoked, by the party assuming to be aggrieved, which could not be short of a motion to correct the judgment. Therefore, an appeal from the judgment did not raise the question upon appeal.
    “ Beardsley Scythe Company v. Foster (36 N. Y. 561), determined that an adjudication, by the general term in its order of affirmance, that the appellant recover the costs awarded in the judgment in the first instance, could not be reviewed in an appeal from the order, as it regarded but a question of practice, to be passed upon in the first instance on a motion to correct the form of the order or to prevent there being execution for the same cause.
    “In Binsse v. Wood (37 N. Y. 526), the general term had granted a new trial, unless the plaintiff consented to reduce the recovery in an amount to be ascertained as directed by the general term. The plaintiff consented to reduce as specified. On appeal in the court of appeals it was objected that the judgment entered upon the order of the general term was for a larger amount than had been directed. The court held this was not the subject of appeal, but should have been corrected by motion made in the court below. Evidently the court below had not acted erroneously, for its interposition would come, only when a motion to correct should be made.
    “I can see no analogy between these cases and the one here. The subject matter of the provision, that it is asked shall be stricken out, was directly before the court in the complaint, was passed upon in the findings, and judgment as to it was directed to be entered. The judgment that was entered, accorded with the findings. If was the subject matter of a cause of action or a part of such a subject matter. It was a matter not of form or regularity but of substance.
    
      “ These considerations suggest that the court at special term had no power to pass upon the claims of the plaintiff, on this point, except after a trial of the issues in the manner prescribed by law. After they had been determined upon trial before a judge, another judge upon motion, had no power to annul the determination.
    
      “ It is further argued that the provision in question is not in conformity with the opinion of the court of appeals. It cannot be denied that it is within the decision of that court, if it be not a matter of practice or form or regularity. The position is taken, that when the opinion says, that the plaintiff is simply seeking to remove a cloud upon the debtor’s title to the property so as to subject it to sale or execution, it follows therefrom, that the plaintiff is not entitled to recover a judgment against the defendant that she account for the rents and profits since the beginning of the action. The alleged reason is that the plaintiff must abide by his claim to enforce his execution. The rents and profits, it is said, belong to the owner and his grantees or donees and no one else until title has passed under the sale (Evertson v. Sawyer, 2 Wend. 507 ; citing Bissell v. Payn, 20 John. 3). Many cases of creditor’s bill, incidentally, it is said, support the proposition, that if the claim be to enforce the legal lien of a judgment on land, it is no part of that claim to recover rents and profits before title is changed. But we cannot examine the merits of such a proposition if the court of appeals have passed upon it. As some authorities have been cited, reference may be made to Farnham v. Campbell (10 Paige, 598) which apparently decides that a creditor’s bill may take the rents and profits, during the fifteen months allowed by law to redeem, at least in that case, where the rents were to go to a receiver, who would in due course get the debtor’s legal title. It is an unjustified inquiry to ask, whether the claim for the rents and profits is to be enforced, in a case where the only cause of action is to remove an obstruction to legal process. That was plainly before the court of appeals as a matter of substance, and after its first determination, its attention was called to it by a motion to modify the order, so as to permit an application to the court below to strike the provision in question from the judgment, and it refused to modify its order except by adding ‘ without prejudice to any application, the defendant may be advised to make for relief to the court below.’ This would not countenance the reversal of any part of the order of the court of appeals affirming the whole judgment. The reverse of the fundamental position of defendants’ counsel is true. Instead of perceiving that the judgment does not follow the proposition of the opinion, we should understand that it does follow, even if it is supposed that we did not see the connection between the two in all respects.”
    
      Edward P. Wilder, for appellant.
    
      H. D. Betts and Abram Wakeman, for respondent.
   Opinion by Sedgwick, Ch. J.; O’Gorman, J., concurred.

Motion for re-argument denied and order appealed from affirmed with $10 costs.  