Marsh v. Johnston — 123 A.D. 596

Majority

p. 596

Annie M. Marsh, Appellant, v. James Johnston and William H. Voorhees, Respondents.

Second Department,

January 10, 1908.

Headnote

Practice — order for judgment not judgment — docket corrected.

A paper reciting the facts of a. trial, the verdict, the taxation of costs, and stating that “it is hereby ordered that judgment be entered in favor of plaintiff and against the defendant" for a stated sum of money, “ and that plaintiff have execution therefor,” is- not a judgment, and cannot be entered as such. It is merely an order that judgment enter, and, when docketed as a judgment, will be set aside, and the clerk directed to correct the judgment docket.

•Appeal by the plaintiff, Annie M. Marsh, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of November, 1907.

Henry Escher, Jr., for the appellant.

Charles C. Clark, for the respondents.

Upon-the trial of this case'the plaintiff had a verdict of the jury, and subsequently there was entered in the .clerk’s office a paper which, after reciting the fact of the trial, the verdict and that costs' had been taxed at so much, stated: “ Now, on motion of Elliott & Jones, attorneys for the plaintiff, it is hereby ordered that judgment be entered in favor of the plaintiff and against the defendant

p. 597

for the sum of forty-seven thousand nine hundred and eleven 75/100 dollars ($47,911.75), and that plaintiff have execution therefor.”- This paper was entered by the clerk in the judgment docket and judgment book as a judgment. This is an appeal by the plaintiff from an order setting aside the said order on the ground that it was an order for a judgment rather than a judgment, and directing the clerk to make the proper entries to effectuate the order.

An order for a judgment never was and cannot be a final j tidgment. Because a judgment is a sentence of the law and is meant finally to declare the rights of the parties, it must of necessity be a definite, plain statement of what the final determination is. Bothing short of this should suffice, especially in view of the solemnity and binding effect of judgments. The paper, in this case, which the appellant seeks to call a judgment, is clearly merely an order that a judgment enter, and does not declare that the plaintiff recover of the defendants any sum or have any other relief. “At common law a judgment is the determination or sentence of the law, pronounced by a competent judge or court, as the result of an action or proceeding instituted in or before such court or judge, affirming that, upon the matters submitted for its decision, a legal duty or liability does or does not exist.” (23 Cyc. 665.) It is “ an adjudication of the rights ‘of the parties in respect to the claim involved.” (McNulty v. Hurd, 72 N. Y. 518 , 521; Matter of Lyman, 60 Hun, 82 , 84.) The paper in question is not this, but is a mere direction that such as this may be entered. Such a direction has no more effect than findings of fact and conclusions of law in an equity ‘ case, and in such conclusions a direction that judgment enter in accordance therewith is usual. Bo one, however, has ever supposed ' that such a direction, even if entered by the clerk, was actually a' judgment.

The fact that an order which has been set aside is entitled as a judgment does not, of course, make it such ; and the provision for execution evidently means that the judgment when entered pursuant to the order should contain a direction that execution issue to enforce its*terms. Our conclusion is that the paper in question is not a judgment, and inasmuch as the practice, in cases tried before a jury, is hot to enter an order directing a judgment, but rather

p. 598

that the judgment should be entered upon the- making up of - a judgment roll properly constituted, the court below was right in vacating and setting aside the order and in directing that the clerk make .the proper entries in .the judgment docket and the judgment book to effectuate its order.

The appellant asks us to amend her judgment nuno,jpro time. Without determining under what conditions it would be proper to amend nunc pro tunc, it is sufficient to say that in this case there is no judgment to amend.

It follows that the order appealed from should be affirmed, with costs. . '

Woodward, Jenks and Miller, JJ., concurred; G-aynor, J., concurred in result, on th¿ ground that the paper put on the record by the clerk is not an order but a nullity, and should be struck from the record. The clerk had no power to make an order.

Order affirmed, with ten dollars costs and' disbursements.

Cases cited

McNulty v. Hurd 72 N. Y. 518 N.Y. 1878-02-19 at 521 p. 597