Broker v. Taylor

PER CURIAM. Defendant appealed from the judgment and an order denying a new trial. The appeal from the order was, oh motion of respondent, dismissed, for want of an undertaking to support it. The questions subject to our review, therefore, are such only as arise upon the judgment-roll. No such questions are presented in appellant’s briefs, the points there discussed being such alone as would arise on an appeal from the order denying a new trial. We have examined the record, and are satisfied that the complaint states a cause of action, and that the findings are sufficient to support the judgment in favor of plaintiff. The suggestion made at the oral argument that the judgment should not have been against Papenhausen, as executor, is, we think, without substantial merit. The court found that he had the fund in his hands as executor; and the judgment was, in effect, that it be paid over to plaintiff in due course of administration. Technically, perhaps, the theory upon which the plaintiff recovered was that the property did not belong to the estate; but, being in defendant's hands, we cannot see wherein his rights are in any way prejudiced by the form of the judgment, and the objection may therefore be disregarded. The judgment appealed from is affirmed.