Majority
p. 285Frederick A. Card, App’lt, v. Mary M. Meincke et al., Resp’ts. (Supreme Court, General Term, First Department, Filed June 30, 1893.)
Headnote
Judgment—Entry must conform to decision.In an action tried by the court without a jury the clerk can only enter a judgment as directed by the decision filed, or upon a subsequent approval by the trial judge of the judgment proposed to be entered. Where the decision is simply that judgment be entered in favor of defendants and against plaintiff, an entry of judgment dismissing the complaint “upon the merits ” is erroneous.
Appeal from an order denying plaintiff’s motion to amend the judgment herein by striking out the words “ upon the merits.”
At the close of plaintiff’s evidence defendants moved to dismiss, which motion was granted, and judgment ordered to be entered in favor of defendants and against the plaintiff. Judgment was entered by the clerk dismissing the complaint upon the merits.
L. Karge, for app’lt; Hinrichs & Rudolph, for resp’ts.
In an action tried before the court without a jury the clerk can only enter a judgment as directed by the court in the decision filed, or upon a subsequent approval by the judge who tried the cause of the particular judgment that is proposed to be entered. In the case at bar the decision filed contained no such explicit directions, and certainly did not state that any judgment should be entered dismissing the complaint in this action on the merits, whatever might have been the intention of the learned judge who tried the cause. We think, therefore, that the motion should have been granted, striking out from the judgment the
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words, “ upon the merits.’” The order appealed from should be reversed, and the motion granted, with ten dollars costs of appeal and disbursements, and ten dollars costs of motion and disbursements.
Van Brunt, P. J., Follett and Parker, JJ., concur.