[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 327
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 328 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 330
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 331 The court had the power, in the exercise of its discretion, to set aside the judgment entered in favor of the plaintiff after the first trial, and to permit the three defendants, Stevenson and the Goelets, to appear and answer. Mrs. Stevenson, as the administratrix of her husband's estate, was interested to the full amount of plaintiff's claim, for in case he could enforce his judgment against the real estate she, as administratrix, was liable to the Goelets upon the covenants contained in her husband's deed and the bond of indemnity given by him to the Goelets; and the Goelets were interested *Page 332 in the real estate in consequence of their purchase of the same and their ownership thereof. Therefore, under section 452 of the Code, it was proper that they should be made parties defendant. And, notwithstanding section 724 of the Code, the court had the power to set aside the judgment and allow them to come in and defend. (Dinsmore v. Adams, 5 Hun, 149; Alling v. Fahy,70 N.Y. 571; Hatch v. Central Nat. Bank, 78 id. 487;Vanderbilt v. Schreyer, 81 id. 646; O'Neil v. Hoover, 17 Week. Dig. 354.)
In consequence of the filing of the notice of the pendency of this action, the first judgment bound these defendants as if they were parties to the action. Persons thus situated bear such a relation to the action that they could not only claim to be made parties during the pendency of the action, but they can also move the court and be heard in reference to any judgment rendered therein affecting their rights. The whole power of the court to relieve from judgments taken through "mistake, inadvertence, surprise or excusable neglect," is not limited by section 724; but in the exercise of its control over its judgments it may open them upon the application of anyone for sufficient reason, in the furtherance of justice. Its power to do so does not depend upon any statute, but is inherent, and it would be quite unfortunate if it did not possess it to the fullest extent.
The present judgment is right upon the merits. The plaintiff had no written stipulation giving or agreeing to give him a lien upon real estate. If he had any agreement for a lien upon this real estate, it all rested in parol, and there was no part performance and no ground whatever authorizing the maintenance of the action.
The order and judgment appealed from should, therefore, be affirmed, with costs.
All concur.
Ordered accordingly. *Page 333