Brusie v. Peck Bros. — 42 N.Y. St. Rep. 803

Majority

p. 803

Russell Brusie, Resp’t, v. Peck Brothers & Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Judgment—Entry.

In the absence of special authority the clerk’s power is limited to the entry of a general judgment and he can neither enlarge nor abridge the scope or operation thereof by interpolating words therein.

Appeal from order denying motion to correct and amend the judgment and postea.

Action to recover royalties under a license to make and sell machines under a patent and damages for non-performance of the license and a rescission thereof.

Wolff & Hodge (Robert Sewell, of counsel), for app’lt; Robert S. Wensley (Horace Graves, of counsel), for resp’t.

When the plaintiff came to enter his judgment upon the verdict he obtained at the circuit, he did so in these words:

“ The issue 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 defendant 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 defendant made a motion to strike out the words included above in brackets, and the motion was denied, and the defendant has 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 defendant, 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 ten dollars costs and disbursements, and the motion should be granted, with ten dollars costs.

Barnard, P. J., concurs; Pratt, J., not sitting.