New York Ice Co. v. North Western Insurance — 20 How. Pr. 255

Majority

p. 255

SUPREME COURT.

The New York Ice Company agt. The North Western Insurance Company.

Headnote

Where final judgment dismissing a complaint is duly rendered and entered, without any mistake or omission therein, it is a disposition of the whole ease, and the court has no power subsequently to amend it by allowing the plaintiff to bring a new action.

New York General Term,

December, 1860.

Sutherland, Ingraham and Bonney, Justices.

Appeal from an order made at special term, amending the judgment by allowing the plaintiff to bring a new action.

This action was tried at special term, held on the 23d December, 1859, judgment

p. 256

was rendered that the complaint be dismissed without prejudice to plaintiff’s right to bring an action at law upon the policy of insurance set out in the complaint. On application of the plaintiff, an order was made at special term on 5th July, 1860, that said order, (judgment,) dated 22d December, 1859, be amended, as of 5th July, I860, by adding after the words “ set out in the complaint,” the words “ or the plaintiffs may serve a new complaint at law in this action on payment by the plaintiff to the defendants of all interlocutory costs since the filing of the complaint, and costs of this motion, ten dollars.” Prom this order of 5th July, the plaintiff has appealed.

By the terms of said policy, the time within which an action may be brought upon.it is limited, and that time has expired. And the amendment of said judgment is therefore necessary to enable the plaintiff to prosecute an action at law upon it. The amendment appears to me not unreasonable or inequitable, but I do not see that the court has any power to make it. Pinal judgment dismissing the complaint was duly rendered and entered. And there is no allegation or pretence of any mistake or omission therein. The judgment is precisely what it was intended to be, and disposes of the whole case. The amendment has been asked for and granted upon considerations not presented to the court at the hearing, and is intended to give to the plaintiff relief not then contemplated by any one.

The Code, section US, authorizes the court, after judgment, to amend any pleading, process or proceeding, by adding or striking out the name of any party,—by correcting a mistake in any respect,—by inserting other allegations material to the case, or conforming the pleadings or proceedings to the facts proved; but such authority does not reach this case.

In the case of Clark agt. Hall, (7 Paige, 382,) it was held by the Chancellor that a decree cannot be varied in substance, without a rehearing, but it may be amended or

p. 257

corrected on motion as to mere clerical errors, or by inserting any provision or direction which would have been inserted, as a matter of course, if the same had been asked for at the hearing, as a necessary or proper clause to carry into effect the decision of the court.

This case states the power to amend a decree or judgment on motion, in as broad terms as any that has fallen under my notice, but in my opinion is not authority for making the order now before us; and in my judgment that order should be reversed, with ten dollars costs of appeal, to the respondent.