Marshall v. Boyer — 23 N.Y. St. Rep. 302

Majority

p. 302

Henry S. Marshall, App’lt, v. John Boyer, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed April 12, 1889.)

Headnote

1. Judgment—Costs—Correction oe error.

Where a plaintiff in direct violation of the direction of a referee, in an action tried before him, procures costs to be taxed in his favor and inserted in the judgment, the defendant, by not moving for a correction of the judgment at special term, before the same was affirmed on appeal, loses his right to do so without first obtaining permission of the general term for an order correcting the judgment so as to make it comply with the direction of the referee.

3. Same—Courts—Jurisdiction — General term — Power to modiet judgment—Code Civ. Pro. , § 1317.

The general term has power on appeal from a judgment entered on the decision of a special term or the report of a referee, to reverse or affirm, wholly or partly, or- to modify the judgment appealed from.

3. Same—Appeal—When presumed that no error has occurred.

Where the general term, on appeal, affirms a judgment entered on the decision of a special term or the report of a referee, it is to be presumed that it has examined and disposed of every question disclosed by the-record, according to the right of the matter, and that no error has occurred of which the appellant can rightfully complain, and such a judgment is final as far as this court is concerned, and without its permission no further action can be taken to change, alter or modify the judgment as it was affirmed.

p. 303

Appeal from an order of the Onondaga special term, striking from the judgment roll the costs inserted therein, in the plaintiff’s favor.

E. C. Aiken, for app’lt; H. A. Maynard, for resp’t.

In view of the situation of the case at the time the order was granted, we think it was error for the special' term to strike from the judgment the provision awarding costs to the plaintiff. The action was tried before a referee, who found due the plaintiff $64.10, and awarded judgment for that sum, without costs to either party. The plaintiff’s attorney disregarded the direction as to costs, and procured costs to be taxed in his favor, in amount $154, and inserted the same in the judgment, which was filed July 3, 1888. Thereupon, and upon the 17th day of July, the defendant appealed from the judgment to the general term, filing an undertaking to pay the judgment, if affirmed, and afterward, and on the 3d of October following, the judgment was affirmed, and on the next day judgment of affirmance was entered in the proper clerk’s office. In September, the defendant noticed a motion for the 6th day of October, founded on the pleadings and affidavits, for an order to strike from the judgment the provisions inserted therein relative to costs, which was opposed by the plaintiff, who presented an affidavit, which stated that the judgment had been affirmed by the general term.

On the trial, and on this motion, the plaintiff contended that this was an action at law, and that as he recovered more than fifty dollars, he was entitled to costs, as matter of right, under the provisions of the statute. On the contrary, the defendant insisted it was an equitable action, and the costs were in the discretion of the court.

The plaintiff, by not appealing from the judgment, acquiesced in the ruling of the referee, that he was not entitled to costs, and by inserting in the judgment a provision awarding costs to himself, he was guilty of a serious irregularity. We think, after taking an appeal, the defendant might have moved for a correction of the judgment at special term, at any time before judgment was affirmed. After appeal, the cause remained in the same court in which it originated.

It is claimed by this appellant that by taking an appeal to the general term, the defendant waived the right to object to the insertion of costs in the judgment-roll, and cites in" support of his views, Guckenheimer v. Angevine, 16 Hun, 453 ; Pfaudler Co. v. Sargent, 43 id., 154; 5 N. Y. St. Rep., 413 .

On an examination of these cases it will be seen that they hold, and nothing more, that by appealing from the judgment , the appellant waives the right to move for a re-taxation of costs, for the purpose of striking out some one or

p. 304

more of the items erroneously inserted in the bill. The question now presented is very different and more important than the one determined by the cases cited. Here the grievance complained of is, that the judgment as entered, does not conform to the directions of the court, and is in direct violation of one of the questions determined by the decision. By the rules of practice the special term is the proper court in which to move in due time to correct errors of the character of the one presented by these papers. But by another rule of this court, which cannot be disregarded, we think the defendant has lost the right to move for a correction of the judgment without first obtaining permission of this court for leave to move for an order correcting the1 same, so as to make it comply with the decision of the referee. This court has the power, on appeal from a judgment entered o‘n the decision of a special term, or the report of a. referee, to reverse or affirm, wholly or partly, or to modify the judgment appealed from. Code Civil Procedure, section 1317. Where this court, on appeal, affirms a judgment entered on the decision of special term, or the report of a referee, it is to be presumed that it has examined and disposed of every question disclosed by the record, according to the right of the matter, and that no error has occurred of which the appellant can rightfully complain.

Such a judgment is final, so far as this court is concerned, and without its permission, no further action can be taken to change, alter or modify the judgment as it was affirmed. Otherwise, a cause would never be at rest, and there would be confusion and inconsistency in the judgments of the courts. Gelston v. Codwise, 1 Johns. Ch., 189 ; 4 Wait’s Practice, 242.

By granting the order appealed from, one of the questions considered and determined on the trial is again started, and if this kind of practice should be permitted, there would never be an end to litigation.

If the error of which the defendant now complains appears in the record presented to this court on the appeal from the judgment, this court had the undoubted power to correct the same by modifying the judgment so as to conform it to the decision of the referee; or it would have in the order of affirmance permitted the defendant to move for correction of the judgment at special 'term. If for any cause the attention of the court was not called to the error or mistake, it had the power, after the order of affirmance was granted, to relieve the defendant by entertaining a. motion made, in due time, for a reargument, or to modify the order of affirmance, and that right may yet be exercised.

The effect of the order appealed from was to change and modify the judgment of this court, which the special term had no power to do. Order appealed from is reversed, without costs of this appeal.

All concur.