
    Mary G. Hawkes, Appellant, v. Charles F. Warren and Others, Respondents, Impleaded with Mary Hall and Others.
    Fourth Department,
    July 6, 1909.
    Appeal — agreement that plaintiff’s and defendant’s appeal be heard separately.
    The Appellate Division will not entertain an appeal where it appears that the parties agreed that the plaintiff's appeal should be first heard, and the defendant’s appeal be subsequently brought before the court on the happening of a certain event.
    
      Appeal by the plaintiff, Mary Gf. Hawkes, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Niagara on the 5th day of' May, 1906, upon the report of a referee dismissing the complaint upon the merits as to said defendants.
    
      E. C. Crowley, for the appellant.
    
      Bradley & Merritt and A. Edmund Lee, for the respondents.
   Williams, J.:

We should refuse to consider or determine the appeal as now presented to us.

No points are presented on the part of the respondents. Forty pages of points are presénted on the part of the appellant. On page 5 of these points appears the statement that the respondents named in this record have also appealed from this judgment, but by virtue of an agreement between the attorneys they are not to appear in opposition to plaintiff’s appeal, and after a year in a certain event they are to prosecute their appeal which will require the making of a case and exceptions. While plaintiff’s appeal is taken and presented here on the judgment roll without any ease and exceptions, I think this will not answer. All appeals that are to be presented from this judgment should be heard at the same' time. The court will not permit the attorneys,to agree that the plaintiff’s appeal may 'be first heard, and in a certain event the defendant’s appeal may afterwards be brought before the court for hearing.

The action was brought to determine conflicting claims to real property. Plaintiff was in possession, but had no legal title'. She claimed to be the heir of the deceased owner hy adoption, and also claimed under an agreement with the deceased owner that if she would live with him and care for him he would give her the property. The referee (now Justice Pound) decided there was no adoption that enabled plaintiff to inherit the property from the deceased,, and that she was not .entitled to judgment establishing any rights tinder the alleged contract; that the defendants were the heirs of the deceased owner, but were not entitled to a judgment barring the plaintiff’s alleged rights in the property.'

The plaintiff wants us to determine the questidns of law argued by her, andmpon the referee’s findings of fact order full judgment in her favor and against defendants, without hearing such defendants, upon these questions.

It is queer that the attorneys for defendants should have made the agreement referred to in the appellant’s points and letter inclosed.

I am in favor of refusing to consider the appeal in view of this statement, in the points and the letter, which we may assume to be true.

All concurred.

We refuse to hear or consider the appeal as novv presented to ns for the reasons stated in memorandum.  