Majority
p. 287SUPREME COURT. Elizabeth E. Lillie agt. William Sherman et al. Monroe Special Term, March, 1870. Cited Hepburn agt. Griswold, U. S. supreme court, March 1870. Argued the points: I. The court has not the power to amend a judgment! or decree in substance. (Code, % 173.) II. The error, if any, is a judicial one, .which cannot' be corrected on motion. (Hotaling agt. Marsh, 14 Abb., 161 ;
Headnote
A decree, in 1870, of a mortgage foreclosure, upon a mortgage given in 1860, directing that the plaintiff be paid the sum of-dollars, from the proceeds of the sale, means “ dollars” in the present legal tender currency of the United States.If the plaintiff is entitled to payment in gold, the error in the decree is a judicial one and cannot be corrected on motion.
Action brought to foreclose a mortgage executed in 1860. A decree of foreclosure was made in January, 1870, directing a sale of the premises by the sheriff of W^tyne county, and the payment to the plaintiff, from the avjails, of $3,555 92, and .costs. s
Pending the notice of sale on such decree, the plaititiff made a motion to amend the decree by directing payment to the plaintiff in gold or its equivalent.
The second mortgagee opposed the motion.
Henry R. Durfee, for the motion,
Charles McLouth, opposed,
p. 288Clark agt. Hall, 7 Paige, 382; N. Y. Ice Co. agt. N. W. Ins. Co., 32 Barb., 534 ; Barnard agt. Bruce, 21 How., 360 .) III. If any motion could be sustained, it should be a motion for a rehearing, alleging mistake, &c. (Same cases.) IV. The mortgage debt, which by the case of Hepburn vgt. Griswold, might have been payable in gold, merged in the judgment. The amount payable on that judgment may be satisfied with any currency which would pay a debt contracted at the date of the judgment. (Stackpole agt. Robbins, 47 Barb., 212 ; Suydam agt. Barber, 18 H. Y., 468; Goodrich agt. Dunbar. 17 Barb., 644 .)
I think the motion must be denied. The judgment adjudicated that there was due to the plaintiff the sum of—— dollars, and directs that amount to be paid to her from the proceeds of the sale. There is no ambiguity in the terms of the decree. The term “ dollars” there used, meant only dollars in the present legal tender currency of the United States. If upon the facts of the case, the plaintiff was entitled to a greater sum, or to payment in a currency of a greater value, the error in the decree was a judicial one, and cannot be corrected on motion. (Hotaling agt. Marsh, 14 Abb., 161 ; Clark agt. Hall, 7 Paige, 38.2; N. Y. Ice Co. agt. N. W. Ins. Co., 32 Barb., 534 ; Barnard agt. Bruee, 21 How., 360 .)
Motion denied with $10 costs.