Symson v. Selheimer — 8 N.Y. St. Rep. 61

Majority

p. 61

Truman Symson, App'lt, v. Hannibal Selheimer et al., Resp'ts.

(Court of Appeals,

Filed April 26, 1887.)

Headnote

Practice—Amendment of confession of judgment discretionary.

A motion for permission to amend statement in a confession of judgment is addressed to the discretion of the court, and where the special term grants the motion unconditionally, this court has no power to exercise its discretion and put in some other condition than that imposed by the supreme court.

Motion to amend remittitur.

•

On motion of plaintiff an order was granted October 26, 1885, by the special term allowing a judgment by confession, in his favor, to be amended, and ‘ ‘ that amendment made as of June 6, 1885.” On appeal the general term modified the order by directing that “the hen of said judgment be, and the same is hereby, deferred to that of the judgment-creditors existing October 5, ,1885, and as to all the real estate embraced in the assignment of December 5, 1884.” The plaintiff appealed from so much of the general

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term order as modified that of the special term, and defendants appealed from the whole order. The general term order was modified by providing that plaintiff’s motion to amend should be granted upon his consenting, to postpone the lien of his judgment to those existing October 5, 1885, as to all the real estate embraced in the assignment of the judgment-debtors, dated December 15, 1884; otherwise denied.

Nathaiel Foote, for app’lt; John H. White, for resp’ts.

The motion made by plaintiff at special term, to obtain permission of the court to amend the statement of the confession of judgment, was addressed to the discretion of the supreme court. It was not an amendment which he had the legal right to demand, but was one which the might, in its discretion, refuse, or grant upon such terms as to it might seem to be just. Mitchell v. Van Burén, 27 N. Y., 300 . The special term granted the motion to amend unconditionally.

Upon appeal, the general term, while affirming that part of the order of the special term granting leave to amend, coupled it with a provision absolutely postponing the hen of the plaintiff’s judgment, as stated in such order. The effect was that, upon a motion for leave to amend his judgment, the plaintiff found that his motion had been granted, and the lien of his judgment absolutely postponed; instead of which, as he was asking for a favor, the order, should have been in the form of granting the favor upon condition of his assenting to the postponement of his lien; thus giving the option to him of taking his favor upon the condition imposed, or of not taking it, and leaving his judgment in its original state. This court thought that the plaintiff had a right to have this option granted him. We, thereforefore modified the order of the general term in the manner set forth in the remittitur.

The present motion to amend the remittitur, by putting in some other condition than that imposed by the supreme court, is to appeal from the discretion exercised by that court, and to ask us to exercise our own, which we have no power to do. We think, however, that the order, as modified by this court, in case plaintiff accepts the conditions, cannot be construed to postpone the plaintiff’s judgment to the lien of a judgment docketed in form, but which is, as matter of law, void. Where is the lien of a void judgment, or how can it be said to be a judgment at all?

The motion to amend the remittitur must be denied, without costs.

All concur.