
    Eliza A. Simmons, Ex’rx, Resp’t, v. Helena Craig et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 31, 1893.)
    
    1. Judgment—Correction of.
    If the judgment entered in an action be not in pursuance of the decision, or be improper in form, the defendant, if he has an opportunity, should object thereto and then make a motion to correct it; and if his motion be denied, and the defect or error be matter of substance, he may appeal, in a proper case, even to this court for its correction. If the judgment be really objectionable, an appeal therefrom is not the proper remedy.
    2. Motions and orders—Affidavit.
    A statement in an affidavit that deponent denies that he had information or knowledge sufficient to form a belief, and alleging that he had no knowledge and information sufficient to form a belief, is an absolute nullity. Such form of denial is authorized only in a pleading.
    Appeal from a judgment of the supreme court, general term, first department, affirming an interlocutory judgment granted at special term;
    
      E. Haines, for app’lts;
    
    
      Herbert H. Gibbs, for resp’t.
    
      
       Affirming 43 St. Rep., 358.
    
   Per Curiam.

This action was brought by Maria W. Croome against the defendants to procure an adjudication that they were trustees of certain property for her, and to compel them to account in reference thereto. It was brought to trial at a special term, where an interlocutory judgment was rendered, in which, among other things, the defendants were ordered to account, and a referee was appointed for the purpose of the accounting. Pending the hearing before the referee, Mrs. Croome died, leaving a will in which Eliza A. Simmons was appointed executrix. Subsequently, upon her motion, she was substituted as plaintiff in the action, and the trial thereafter proceeded before the referee, and he found that there wasMue from the defendants to the plaintiff, $6,588.19, besides interest. Upon his report final judgment was entered in favor of the plaintiff, by which it was “ ordered, adjudged and decreed that said defendants, Helena Craig and Daniel H. Craig, and each of them, be and they are hereby ordered and directed to forthwith, as such trustees, pay over to the plaintiff the said sum of $6,588.19, so found due plaintiff by said report, together with the sum of $755.69 costs, and the sum of $300, allowance hereby granted plaintiff, in all the sum of $7,-643.88, and that plaintiff recover of the defendants, Helena Craig and Daniel Craig, the said sum of §7,643.88.” The defendants then appealed to the general term from the interlocutory and final judgments, and from the order substituting the plaintiff and continuing the action in her name, and the judgments and order were affirmed. They then appealed to this court, and here they allege but two errors.

(1) They say the judgment is wrong in form, in that it directs payment forthwith of the amount found due the plaintiff, and, also, adjudges that she shall recover that amount. This objection to the judgment is frivolous. It does not appear that such an objection was made in the court below. If the judgment be really objectionable in form, an appeal therefrom is not the proper remedy. Dor aught we know the defendants assented to the form of the judgment, or stood by at its entry, making no objection thereto. If the judgment entered in an action be not in pursuance of the decision, or be improper in form, the defendant, if he has an opportunity, should object thereto and then make a motion to correct it, and if his motion be denied and the defect or error be matter of substance he may appeal, in a proper case, even to this court for its correction. But there was no possible objection to the form of the judgment. It was unnecessary to insert therein a direction to pay forthwith, and that part is without any force or effect. The adjudication that the plaintiff recover the amount found due to her was sufficient, and the judgment could only be enforced by execution. Code of Civil Procedure, §§ 14, subd. 3, 16, 1240, 1241.

(2) The affidavit upon which the order of revival was based showed positively that Mrs. Groome died in the state of Massachusetts on the 26th day of March, 1890, leaving a will in which Eliza A. Simmons, the present plaintiff, was appointed executrix ; that the will was admitted to probate, and letters thereon issued to Mrs. Simmons, as executrix, by the probate court of Middlesex county, state of Massachusetts, a court of competent jurisdiction; that ancillary letters were thereafter issued to Mrs. Simmons by the surrogate of the city and county of New York, and that she duly qualified as such executrix. In opposition to the motion, an affidavit was made by the defendant, Daniel H. Craig, in which he denied that he had any information or knowledge sufficient to form a belief and alleged that he had no knowledge and information sufficient to form a belief as to the essential facts stated in the affidavit for the motion. This form of denial in an affidavit is an absolute nullity. It is authorized in the case of a pleading for the purpose of forming an issue of fact, but not in other cases. In the Matter of Sullivan, 55 Hun, 285; 28 St. Rep., 566. The want of knowledge or information was wholly immaterial. The moving affidavit stated when and where Mrs. Oroome died; when and where her will was admitted to probate, and letters testamentary and ancillary letters were granted.

It would, therefore, have been quite easy for the defendant making the affidavit to ascertain the facts, and his denial that he had any knowledge or information sufficient to form a belief did not controvert the facts positively alleged in the moving affidavit. It was for the court to determine upon the hearing whether the facts were sufficiently established, and its determination could not in any event be reviewed here. If the facts had been fairly controverted, the court had the power to order a reference that they might properly be ascertained. Here the cause of action survived, and it was the absolute duty of the court, under § 757 of the Code, to make an order continuing the action by the representatives of the original plaintiff. Code, § 757; Coit v. Campbell, 82 N.Y., 509.

This appeal is without the least justification, and the judgment should be affirmed, with costs and five per cent dama'ges on the amount of the recovery for the delay.

All concur.  