Parker v. Linden — 36 N.Y. St. Rep. 564

Majority

p. 564

John Parker et al., Ex’rs, App’lts, v. Maria Linden et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed January 16, 1891.)

Headnote

1. Motions—Notice.

After the decision of an action at special term, the court may, upon a less notice than eight days, settle the form of judgment and direct the entry thereof.

3. Judgment—Alteration.

Under pretext of an application at the foot of a decree, no substantial alteration of the original judgment cau he permitted, nor can a judgment he entered relating to a subject matter which might have been a subject of investigation on the trial

Appeal from order of special term, amending an equity judgment and ordering trustees to surrender a trust estate, and from order denying, with costs, a motion to vacate such order for irregularity.

The motion for the first order was made on a notice of two days.

I. N. Miller, for app’lts; A. J. Skinner, for resp’ts.

The papers presented upon this appeal are so meagre that it is with great difficulty that the court has been able to get at the precise position of the parties in respect to this motion.

There is no question that the court, after the decision of an action at special term, may, upon a less notice than eight days,-settle the form of the judgment and direct the entry thereof, and, therefore, the order appealed from cannot be reversed upon the ground of irregularity.

But we think that, under the pretext of an application at the foot of the decree, no such substantial alteration of the original judgment can be permitted, nor can a judgment be entered relating to a subject matter which might have been a subject of investigation upon the trial, and which, if the rights of the parties demanded, should then have been considered. It is only as to matters arising subsequent to the judgment, for the purpose of carrying into effect the judgment already entered, that an application at the foot of the decree can be permitted. In the case at bar, without any proof and without any trial, a substantial right of the plaintiffs is adjudicated upon and determined adversely to them. This, we think, the court had no power to do.

The order amending the judgment should, therefore, be reversed and the application for such relief denied, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.