Corn Exchange Bank of Chicago v. Blye — 27 N.Y. St. Rep. 297

Majority

p. 297

The Corn Exchange Bank of Chicago, Resp’t, v. Alphonso W. Blye, Receiver, etc., App’lt.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

1. Replevin—Judgment—Must eollow verdict.

In an action to recover possession of bonds the verdict awarded possession to plaintiff and fixed the value of the bonds. The judgment directed the delivery of the bonds, or if a delivery should not be had that plaintiff recover their value with costs. It also directed a recovery of damages for detention. Held, that the latter direction was wholly unauthorized by the verdict.

3. Same—Remedy eor unauthorized addition.

Where an entirely unauthorized addition to the judgment beyond that permitted by the verdict has been made, the mode of correcting it is by a.' special motion; it is not the subject of an appeal.

3. Same—When motion to correct may be made.

The time within which, by § 1283 of the Code, a motion has been required to be made to set aside a judgment for irregularity has no application to a motion to strike out an unauthorized addition to the judgment.

Appeal from an order denying a motion to correct the judgment entered in this action.

Elihu Root, for app’lt; L. A. Gould, for resp’t.

The action was replevin for the recovery of the possession of bonds issued by the West Point Manufacturing Company, with the coupons thereto attached. And it resulted at the trial in the direction of a verdict for the plaintiff for the recovery of the bonds described in the complaint, except those numbered 9, 10, 11, and 12. By the verdict which in this manner was rendered, the possession of the bonds was awarded to the plaintiff, and their value, including damages, was fixed at $25,315.18. And that appears to have followed the proof establishing the

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amount of the bonds, together with the coupons, or interest warrants which had been attached to them, including thereby all that the plaintiff was entitled to in the action. And the judgment fully carried this verdict into effect. For it adjudged that the plaintiff should have the delivery of the chattels included in the verdict, and that the defendant should deliver the bonds to the plaintiff. And in case a delivery should not be had, then the plaintiff should recover from the defendant this sutil of $25,315.18 as damages, together with the costs of the action. These provisions inserted in the judgment were fully as broad as the verdict authorized them to be entered. And it furnished authority for entering no more than these directions in the judgment. But a further provision and direction was inserted in it, adjudging “ That the plaintiff have and recover from defendant the sum of $2,315.18 damages for the detention of said chattels.” That was a direction not included in the verdict, which was expressly restricted to the sum of $25,315.18, including damages. And after providing by the judgment for the recovery of the bonds, or, in case possession of them should not be recovered, that the plaintiff should recover the amount of money mentioned in the verdict, there was legally nothing further to be added to the judgment against the defendant. The direction for the further recovery of $2,315,18 damages was wholly unauthorized by the verdict, and it should not have been made a part of the judgment.

After the judgment had been recovered an appeal from it was taken to the general term, where it was affirmed, and from that judgment of affirmance a further appeal was taken to the court of appeals, resulting also in its affirmance. But these appeals brought in question the right alone of the plaintiff to the possession of the bonds. They in no manner comprehended this further direction contained in the judgment. Neither was any attention devoted to this direction in the decisions which were made. And no adjudication was made upon the determination of either of the appeals affecting the right of the plaintiff to this additional direction for the recovery of damages. It was not a subject upon which an appeal from the judgment could regularly be taken, but the manner in which the practice has provided for its correction was that of a special motion, for it was an entirely unauthorized addition to the judgment beyond that permitted or allowed by the verdict. And where that addition may be made, the mode of correcting it is by a special motion. Cagger v. Lansing, 64 N. Y., 417 ; Leonard v. Navigation Co., 84 id., 48; Hatch, v. Central Nat'l Bank, 78 id., 487; Dinsmore v. Adams, 48 How., 274 ; affirmed, 5 Hun, 149 ; Cole v. Tyler, 65 N. Y., 77 .

The time within which, by § 1282 of the Code of Civil Procedure, a motion has been required to be made to set aside a judgment for irregularity has no application to this appeal. For the addition of this direction to the judgment was not an irregularity, but it was entirely and wholly unauthorized. For that reason, the case of Brigg v. Hilton, 99 N. Y., 517 , is also inapplicable. The addition in this manner made to the judgment was illegal and without any foundation for it to rest upon. And it

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should be corrected by striking this provision for the recovery of damages, separately and distinctly from the amount mentioned in the verdict, from the judgment roll.

The order should be reversed, with ten dollars costs, and also the disbursements, and an order to this effect entered in the action.

Van Brunt, P. J., and Brady, J., concur.