National City Bank v. New York Gold Exchange Bank

Headnote

The Supreme Court has power, not withstanding an appeal to this court, to make its record declare the truth as to its judgment and so may, after an appeal, amend an order reversing a judgment entered on the report of a referee by adding a statement that the reversal was upon the facts as well as the law.

Hamlin v. Sears ( 82 N. Y. 327 ), distinguished.

Motion to amend return.

The following is the mem. of opinion:

“ On appeal by both parties from a judgment entered on the report of a referee, the Supreme Court, reversed so much of it as was objected to by the defendant, and ordered a new trial. From this the plaintiff appealed. After that, on motion of the defendant, the Supreme Court directed among other things, that its order and judgment be ‘ amended nune pro tuno,’ by inserting after the word ‘reversed,’ the words ‘upon questions of fact and law,’ and the plaintiff now applies for an order conforming the return to the amendment made by that court. Notwithstanding the appeal, the Supreme Court had power to make its record declare the truth as to its judgment, and the remark in Hamli/n, v. Sears ( 82 N. Y. 327 ), that it would not he proper to allow a new decision to be made to defeat an appeal, must be taken with the facts then before us. The case had already been argued in this court and submitted, and the practice suggested by the learned judge as proper when the decision of record did not express the ground on which it was made, accords with the rule laid down in several cases, and among others Buckingham v. Dichvnson (5é N. Y. 682), where upon facts identical with those before us, it was held that the record of the decision of the General Term, after appeal continued so far under its control that it might be amended to conform to the decision actually made. This was followed in Guernsey v. Miller ( 80 N. Y. 181 ).

“The motion should, therefore, be gran ted, but as the amendment gives the respondent a better position, it should be on

payment of costs of opposing motion to the plaintiff’s attorney, and with leave to the plaintiff to withdraw its appeal and go to a new trial under the order of the Supreme Court if it elects to do so, without costs of the appeal.”