Frankland v. Schoenfeld

Gildersleeve, J. .The plaintiffs sued to recover damages for the failure of the defendant to deliver, according to sample, a quantity of embroidery. The amount of damages proven upon the trial was the sum of $244.50 and the jury Tendered a verdict for the plaintiffs for that amount. After the verdict Was announced, the clerk, instead of entering in his docket the sum found due the plaintiffs, recorded therein the sum of $224.50; and, on April 7, 1907, judgment for that amount was rendered in favor of the plaintiffs. From that judgment the defendant appealed by notice of appeal dated April 20, 1907. Subsequently, and upon May 16, 1907, an order was made, upon notice to the defendant, amending the docket of the judgment by making the same read $244.50 instead of $224.50 and also directing that the defendant file and serve a new notice of appeal and a new undertaking. The defendant, by notice of appeal dated June 1, 1907, appealed from the order so amending the docket. The court had power to amend arid correct the judgment under the provisions of section 254 of the Municipal Court Act. Although the motion to amend was not argued before nor disposed of by the justice who tried the [549] case, it does not appear that any objection was made thereto upon that ground nor does the record disclose that any objection was urged that said motion was not made within the time required by said section 254 of the Municipal Court Act, either by opposing affidavits or otherwise; neither is it urged in appellant’s brief that the motion was not made before the proper justice or within the proper time. Any such objection is, therefore, waived. Scharmann & Sons v. Bard, 60 App. Div. 449; Fallon v. Crocicchia, 52 Misc. Rep. 503. The amendment of the docket, by the order aforesaid, necessarily amended the judgment; and, from the judgment so amended and corrected, no appeal appears to have been taken. It may be said that the order was too broad, as the court below could not direct the giving of a new notice of appeal, as it rested with the defendant to determine whether or not he would appeal from the judgment as finally rendered; and, if such an appeal was taken, a new undertaking would necessarily follow if a stay of execution was desired. Order modified by striking therefrom the provision requiring the defendant to file a new notice of appeal and file and serve a new undertaking and, as so modified, affirmed, with costs. Appeal from the judgment dismissed. Lbventritt and Erlangker, JJ., concur. Appeal dismissed.