Brusie v. Peck — 16 N.Y.S. 645

Majority

p. 645

Brusie v. Peck et al.

(Supreme Court, General Term, Second Department.

December 14, 1891.)

Headnote

Judgment—Amendment—Striking Out Unauthorized Words.

In entering j udgment on a verdict in an action to recover royalties for the use of a patent, the clerk, after the words, “The issues in this action having been sent by-order from the special term to the circuit for trial, ” inserted the words, “thus limiting any recovery to claims arising prior to the commencement of the action, ” and; that the verdict rendered assessed damages “down to the time of the commencement of this action. ” Held, there being nothing before the clerk to justify the interpolation of these words, the court erred in refusing to strike the same from the-judgment. .

Appeal from special term, Kings county.

Action by Russell Brusie against Peck Bros. & Co. From an order denying a motion to strike certain unauthorized words from the judgment, defendants appeal.

Reversed.

Argued before Barnard, P. J., and Dykman, J.

Wolff & Hodge, (Robert Sewell, of counsel,) for appellants. Robert S. Wensley, (L. A. Gould and Horace Graves, of counsel,) for respondent.

When the plaintiff came to enter his judgment upon the verdict he obtained at the circuit he did so in these words: “The issues in this action having been sent by order from the special term to the circuit for trial, [thus limiting any recovery to claims arising prior to the commencement of the action,] and the issues having been tried at circuit, and a verdict having been rendered in plaintiff’s favor, assessing his damages (down to the time of the commencement of this action) at $7,674.02,'and the costs having been taxed at $1,521.59, now, on motion of Robert L. Wensley, plaintiff’s attorney, it is adjudged that plaintiff do have and recover of the defendants the sum of $7,674.02 as damages, and $1,521.59 costs, amounting in all to $9,195.61, and that plaintiff have execution therefor. Wm. J. Kaiser, Clerk.” The defendants made a motion to strike out the words included above in brackets, and the motion was denied, and the defendants have appealed from the order. We think the motion was erroneously denied. There was nothing before the clerk to justify the interpolation of the objectionable words. He had authority to enter a general judgment in favor of the plaintiff against the defendants, and then his power was exhausted. His duties in making the entry were ministerial, and he could neither enlarge nor abridge the scope or operation of the judgment he was authorized to enter. The order should be reversed, with $10 costs and disbursements, and the motion should be granted, with $10 costs.