Vitale v. Gants — 123 N.Y.S. 45

Majority

p. 45

VITALE v. GANTS et al.

(Supreme Court, Appellate Term.

May 17, 1910.)

Headnote

Judgment (§ 297*)—Amendment and Correction—Authority of Court.

After the rendition of a judgment on a trial by the court, the court has no power, in response to an appeal to its discretion, to modify the judgment in a matter of substance.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 5S1-5S6; Dec. Dig. § 297.*1

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Antonio Vitale against Albert C. Gants and another. From an order granting plaintiff’s motion to increase a judgment of $80 and $17 costs to $225 and $22 costs after' judgment on a trial

p. 46

without a jury, defendants appeal.

Reversed, and former judgment reinstated.

Argued before SEABURY, GUY, and BIJUR, JJ.

Bertrand L. Pettigrew, for appellants.

Amedeo A. Bertini, for respondent.

The action was for personal injuries. Defendants point out that it cannot be claimed that there was a clerical or similar error, or even an error of omission, made, in rendering this judgment. The moving papers appealed to the discretion of the court to increase the amount of the judgment, on the plea that the damages awarded were inadequate. The court has no power, in response to such a request, to modify the judgment in a matter of substance. Heath v. N. Y. Building Loan Banking Co., 146 N. Y. 260 , 40 N. E. 770 . Plaintiff’s remedy, if he considered himself aggrieved, was to secure a new trial.

The order appealed from should be reversed, with costs, and the former judgment reinstated. All concur.

Cases cited

Heath v. New York Building Loan Banking Co. 146 N. Y. 260 N.Y. 1895-05-28 p. 46