Hyperlawhypertext legal database Schenectady Trust Co. v. Emmons 264 A.D. 974

← Cases

Schenectady Trust Co. v. Emmons

264 A.D. 974 Court N.Y. App. Div. Decision date 1942-09-30 English

Decision Majority · Dissent — Foster, J.

Contents
p. 974
The Schenectady Trust Company, as Trustee under Agreement Made by George E. Emmons, Dated June 20, 1927, and Amendments Thereto, Respondent, v. Nathaniel D. Emmons, Also Known as Daniel Westbrook, Appellant, The Security First National Bank of Los Angeles, at Pasadena, California, as Executor, etc., of George E. Emmons, Deceased, and Others, Respondents, and Florence C. Seward and Others, Defendants Not Appearing.

Appeal from an order denying a motion to amend interlocutory judgment and final judgment to include a special allowance and disbursements. The facts of this case appear fully in Schenectady Trust Co. v. Emmons ( 261 App. Div. 154 ; affd., 286 N. Y. 626 ; Id. 698 ; and in 263 App. Div. 542 ). Order denying the motions to amend the interlocutory judgment and final judgment reversed, on the law and facts, with twenty-five dollars costs, and the motion is granted, with ten dollars costs. The final judgment and the interlocutory judgment is each amended so as to allow to Leary & Fullerton, attorneys for Nathaniel D. Emmons, an extra allowance of $2,000 and disbursements of $1,159.16, payable out of the trust fund. The amendment is made for the reasons outlined at length in the opinion of Bliss, J., in 263 App. Div. 542 . Hill, P. J., Bliss and Heffernan, JJ., concur; Foster, J., dissents, in a memorandum in which Sohenck, J., concurs.

(dissenting). I am unable to agree with the view of the majority. Unless the doctrine laid down in Herpe v. Herpe ( 225 N. Y. 323 ) is overruled neither this court nor the trial court has power to amend a judgment which has become final except to correct clerical errors or grant relief to which a - party is entitled as a matter of course. The proposed amendment does not come within these exceptions, and to the contrary deals with a substantive part of the judgment, i e., the award of additional costs. The order appealed from should be affirmed. Sohenck, J., concurs with Foster, J.

Cases cited