Opinion
July 13, 1970
In an action in ejectment, in which a judgment of the Supreme Court, Dutchess County, dated September 7, 1966, was entered after a jury trial, the appeal is from an order of the same court dated October 30, 1967 which denied appellant's motion (1) that she be substituted as a defendant in place of Lost Village Operations, Inc., and (2) for resettlement of the judgment. Order reversed, with $10 costs and disbursements against plaintiff, and motion granted to the extent of (1) substituting appellant as a party defendant in place of said corporate defendant as its successor in interest and (2) vacating the judgment and remitting the action to the Special Term for correction of the judgment so that it shall accurately reflect the jury's verdict. So far as the papers before us indicate, the jury found the corporate defendant to be the owner of the premises in suit and no finding was made as to plaintiff's title. The corporate defendant did not enter judgment in its own favor and did not oppose the entry of judgment by plaintiff, which without authority inserted in the judgment a provision adjudging that it had title to certain land, which, appellant asserts, the jury had already found was owned by the corporate defendant. In these circumstances the proper remedy is by motion to correct the judgment and not by appeal (cf. Leonard v. Columbia Steam Nav. Co., 84 N.Y. 48, 55-56; CPLR 5015, subd. [a], par. 3; Herpe v. Herpe, 225 N.Y. 323, 327; Matter of Holden, 271 N.Y. 212, 218; Ladd v. Stevenson, 112 N.Y. 325, 332). In the interests of justice the motion to substitute appellant as a party defendant should have been granted. Christ, P.J., Hopkins, Munder, Latham and Kleinfeld, JJ., concur.