Jones v. Merchants' National Bank of New York — 22 N.Y. St. Rep. 444

Majority

p. 444

Winston Jones, Assignee, etc., Resp’t, v. The Merchants’ National Bank of the City of New York, App’lt.^[1]

(Court of Appeals,

Filed March 26, 1889 )

Headnote

1. Practice—Court—Discretion as to orders.

Where, on an appeal from two orders (1) made at a circuit, cancelling the clerk's minutes of trial and substituting other minutes therefor (2), made at special term, opening, amending and reconstructing the judgment-roll in the action, Held, that the court had power to make the orders in the exercise of its discretion.

2. Same — Relief against judgment on appeal to court of appeals.

Where it was stipulated between the parties on the trial that the respective counsel should agree between themselves as to the figures which it would be necessary to insert in the verdict for the plaintiff, or if they could not, that the evidence as to them should be taken before the judge, without a jury, and which was subsequently done and the verdict and judgment entered in conformity therewith, and the requirements of the-law, Held, that the only relief against the judgment, to which the defendant is entitled, is by an appeal therefrom.

Appeal from an order supreme court, general term, first, department, affirming two orders:

First. An order made at a circuit court, dated January 29, 1887, declaring that no minutes of the verdict rendered, on the trial of the action, January 17, 1887, was entered on that day by the clerk, because the circuit court then directed an adjournment to prescribe the form and contents of the entry to be made; that if on any subsequent, day any minute of such verdict was entered it was incorrect and erroneous and entered by inadvertence and misapprehension by the clerk, and further directing that any such incorrect minute stand corrected and amended as by the order itself prescribed.

Second. An order made by the same justice, at special term, September 1,1887, carrying his circuit order into effect- and setting aside a judgment theretofore entered herein,.

p. 445

and opening and amending the judgment-roll and prescribing the form of the amended judgment, which was directed to be entered nunc pro tune as of February 4, 188Í.

John E. Burrill, for app’lt; Burton N. Harrison, for resp’t.

—The verdict of the jury disposed of the real issues involved in the action. It remained only to compute the interest and ascertain the value of the property at the time of the trial, and to put the verdict in proper form. The appellant claims that at the time the verdict. was directed there was an agreement by counsel in open court that the interest should be subsequently computed by the court unless counsel could agree upon the same. On the other hand it is claimed by the plaintiff that it was stipu•lated that counsel should agree between themselves upon the interest and the value of the property, or if they could not, that the evidence as to them should be taken before, the judge, without the jury, before the entry of judgment.. As there was a conflict in regard to what the precise agreement was, we must take the facts here as claimed by the plaintiff. The interest was subsequently computed, and proof of the value of the property at the time of the trial was taken before the judge; and all that the courts have been trying to do since, and have actually accomplished, has been to carry out the stipulation and to put the verdict in proper form, and cause the entry of the proper judgment. The_ verdict and judgment as finally recorded and entered are in precise conformity with the agreement of counsel,, and the requirements of the law, and the only relief against, the judgment to which the appellant is now entitled is by an appeal therefrom.

We think the court had the power to make the orders appealed from in the exercise of its discretion, and this appeal should, therefore, be dismissed, with costs.

All concur except Gray, J., not voting.