Hooper v. Beecher

• Decision Date: 06 March 1888
• Citation: 109 N.Y. 609,15 N.E. 742
• Parties: HOOPER et al. v. BEECHER et al.
• Court: New York Court of Appeals Court of Appeals

109 N.Y. 609

15 N.E. 742

HOOPER et al.

v.BEECHER et al.¹

Court of Appeals of New York.

March 6, 1888.

Appeal from general term, supreme court, First department.

Motions by the respondents and plaintiffs, Nathaniel Hooper et al., to dismiss appeals taken by the appellants from the judgment in this action, and from two orders of the general term; one of which denied a motion for reargument of the appeal, and the other of which modified a previous order of the general term granting costs against the defendants, and making the costs payable out a fund in the hands of an assignee, one of the defendants.

Franklin Bien, for respondents.

GRAY, J., ( after stating the facts as above.)

The order of the general term denying reargument is not reviewable here. The number of arguments which an appeal is entitled to and may have is in the discretion of the court where the appeal is pending. Fleischmann v. Stern, 90 N. Y. 110. The order of the general term modifying its previous order, and making the payment of costs a lien upon the funds in the hands of one of the defendants as assignee, was granted upon the appellants' own motion. Thereby they obtained the precise relief they had made application for. A party in whose favor a judgment is entered, or an order made, cannot be aggrieved by it, and he is therefore in no position to claim the right of appeal. As to the motion to dismiss the appeal from the judgment as frivolous, it should be denied. The action was instituted by the plaintiffs, as judgment creditors, to set aside an assignment made by the defendants comprising the firm of Charles McColluch, Beecher & Co., for the benefit of their creditors, to defendant Bartlett as assignee. The court at special term held the assignment to be invalid, inasmuch as the instrument was signed by the firm name, and it did not appear that the act of the partner who executed it under the firm name was authorized by, assented to, or acquiesced in by, the other partners. The judgment of the special term was finally affirmed by the general term, for reasons stated in their opinion. From that judgment at appeal was taken to this court, and is now pending. The judgment in question is final, and therefore appealable. The legal questions involved are the validity or invalidity of an assignment for the benefit of creditors, made and executed as above mentioned; and these questions are made to depend upon the consideration of the pleadings and the proofs. Those...