Gasz v. Strick

Beckwith, C. J. I think the order correcting the decision and judgment was properly granted. Opinion of Hatch, J., 3 N. Y. Supp. 830. The ■orders were not objectionable on the ground that they overruled the decision of another judge at a special term. The defendant applied at special term, under section 1525 of the Code, for an order setting aside the judgment and granting a new trial. In ejectment, there is no power or discretion vested in the judge or court as to granting a new trial. In ejectment actions, the right to such order, and to a second trial, is vested in the defeated party to the action by statute. In this case the statute was mandatory, and the order was granted by the court, as it were, ministerially. The court was not called upon to make any judicial determination of an issue, or as to an alleged right. Therefore, the reason of the rule that one judge at special term should not overrule the decision of another judge, but leave the aggrieved party to his appeal, does not find applicability here. The reason for the rule failing, the rule itself is not controlling. Moreover, it will be observed that when the plaintiff first applied for an order to correct the decision and judgment, which was before a judge who did not try the case, his application was made upon affidavits showing that a motion was pending to vacate the judgment and for a second trial; and, although the order of the court refused [410] the application, it expressly provided that it was without prejudice to an application before the judge who tried the cause. That order was in force-when the defendant obtained from the same judge the statutory order setting aside the judgment, and for a new trial. It is contended on behalf of the appellant that it was not competent for the court, although the judge who tried the cause was presiding, to revoke the order made by another judge vacating the judgment, or to make an order-correcting his decision, and directing the re-entry of judgment. Although the order did not, in direct words, vacate the order setting aside the judgment, it, in effect, did so by correcting the decision, authorizing the entry of' anew judgment in conformity with the corrected decision, and providing-that the defendant might avail himself of the order for a new trial by payment of the costs awarded by the new judgment, neither the order correcting the decision and judgment as to costs, nor the order directing an amendment of the judgment so that it should specify the estate of the plaintiff, reviewed or overruled any judicial determination of the issues that the trial court had made, nor did they add anything to the adjudications of the trial judge. The direction in the decision that judgment should be entered, in accordance with the decision, “without costs,” was not a “finding,” nor an exercise of judicial discretion, so as to require an appeal in order to correct the error. Code, § 1022. It may be conceded for the present purpose that the court, on motion, cannot amend the record when the defect sought to be corrected is one that can be reached only by an appeal, and that an appeal is the remedy where the occasion is an alleged error in the process by which the contested rights of the parties are judicially determined, or in the final determination of these rights. But, beyond such necessity of appeal to review “findings” and adjudications, the power exercised by courts in the way of correcting their judgments seems to have been nearly unlimited. “The administration of justice would be extremely imperfect if this power did not exist.” Ice Co. v. Insurance Co., 23 N. Y. 357; Adams v. Ash, 46 Hun, 105; Bank v. Morton, 67 N. Y. 199; Kenney v. Apgar, 93 N. Y. 539; Williams v. Thorn, 81 N. Y. 381; Hunt v. Grant, 19 Wend. 90; Stakes v. Campbell, 7 Cow. 425; Clark v. Hall, 7 Paige, 382. It appeared on the record and from the findings that the action was ejectment, and that the plaintiff was entitled to recover. It followed as an incident that upon entry of judgment the plaintiff has a right, under the statute, to have the clerk tax and allow his costs. This is so obvious as to make it fairly presumable that the direction found in the decision of the court for judgment “without costs” was inserted from mistake or inadvertence. There are several inadvertences apparent in the language of the orders appealed from, e. g., in referring to the direction without costs in the decision as a “finding,” and in the order directing the judgment, instead of the decision, to be amended so as to specify “the estate of the plaintiff.” Code Civil Proc. N. Y. § 1519. There was no legal necessity for an appeal by the plaintiff in order to get a proper direction from the trial judge as to costs, or, rather, to get the non-jurisdiclional direction as to costs stricken out. Vandenburgh v. City of New York, 7 N. Y. Supp. 675. There was nothing susceptible of argument on such an appeal. The plaintiff’s right to costs arises upon a direction in the statute to the clerk of the court, and was outside the jurisdiction of the court, and called for no exercise of discretion on the part of the court'. The insertion in the judgment of the specification of the nature of the plaintiff’s estate, if not authorized by the decision, should have been reached by a motion to strike out, instead of by appeal. There is no proof as to the occasion for the court to order the judgment so amended, though the respondent’s brief says it was done by consent of counsel. But the evidence taken on the trial is not before us, no case having been made for review, and we cannot say that the nature of the plaintiff’s estate in the land recovered did not plainly [411] appear to be a fee, as adjudged. The court has inherent power to correct its judgment in the manner it did in this case. Ladd v. Stevenson, 112 N. Y. 325, 19 N. E. Rep. 842; Hatch v. Bank, 78 N. Y. 487; Vanderbilt v. Schreyer, 81 N. Y. 646. The order appealed from should be affirmed; and the judgment appealed from should be affirmed, with costs.