Petrie v. Trustees of Hamilton College

May 29, 1895, the referee, to whom this action had been referred to hear and determine it, made a report in which is found the following language : “Upon the evidence given upon the trial I find and decide that the plaintiff has failed to make out and maintain his alleged grounds and causes of action, or either of them, and that his complaint should be dismissed. * * * I, therefore, decide that the complaint of the plaintiff should be dismissed, without costs, and judgment is ordered accordingly.” On the same day the defendant entered a judgment which contained the following language : “ It is adjudged that the plaintiff’s complaint in this action be, and the same hereby is, dismissed on the merits, without costs.” Evidently it was the intention of the defendant when it caused to be inserted in the judgment «the words “ on the merits,” to avail itself of the provision found in section 1209 of the Code of Civil Procedure. That section declares that a judgment dismissing the complaint “ does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment roll, that it is rendered upon the merits.” If those words, i. e., “on

In Card v. Meincke ( 70 Hun, 382 ; S. C., 54 N. Y. St. Repr. 285 ) it was held: “ 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.” In that case a motion was made to ’amend the judgment by striking out the words “ upon the merits.” In the course of the opinion delivered it was said: “ 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 words ‘ upon the merits.’ ” (See, also, Freeman v. U. S. Electric Light Co., 59 Hun, 311 .) Doubtless in the case before us the Special Term might have eliminated from the judgment the words “on the merits.” It, however, had power to vacate and set aside the judgment. The “ power of the court over its own judgments, and its habit to exercise it,” were fully declared in Hatch v. Central National Bank ( 78 N. Y. 487 ). In the course of the opinion in that case it was said : “ It is an inherent power and not limited in matters of substance by the sections of the Code.” This court followed the doctrine of that case in Underwood v. Sutcliffe ( 21 Hun, 357 ) as will by a reference to the opinion of Talcott,

"We must now consider the second branch of the order appealed from, which requires the cause to be referred back to the referee with leave to such referee to further report or to change his decision or direction for judgment and conclusion of law, so that the same shall express his precise or full intention with reference to dismissing the complaint upon the merits or not upon the merits.

In McLean v. Stewart ( 14 Hun, 472 ) this court held that after a decision had been made and filed in a cause a subsequent Special Term had no power, upon motion, to alter the judgment entered on such decision as to matters relating to the merits, and that such a change could only be made after a rehearing before the trial judge upon the case being sent back to him, or after a review by an appellate court. That case has been referred to with approval in Rockwell v. Carpenter ( 25 Hun, 532 ) and in Rosa v. Jenkins (31 id. 384) and in Jones v. Jones (71 id. 524). The practice of sending a case back to a referee for further findings has, in certain cases, be.en. upheld.

In Wright v. Sanders ( 28 How. Pr. 395 ) the referee was ordered “ upon the proofs and allegations already made and taken before him ” to make a new report stating separately all the material facts found by him, with his conclusions of law. That practice seems to have been approved in Carroll v. Staten Island Railroad Co. ( 65 Barb. 33 ) and in Rogers v. Wheeler ( 52 N. Y. 262 ).

In McLean v. Stewart (supra), in the course of the opinion, it was intimated that where changes relating to the merits are sought upon a special motion they “ should be allowed only after a rehearing before the trial judge upon the case being sent back to him.” It is to be observed that the order appealed from does not provide an opportunity for the parties to again be heard before the referee. Again, it appears that on the 10th of June, 1895, plaintiff served exceptions to the referee’s report, and that on the fourteenth of

In Gardiner v. Schwab ( 34 Hun, 582 ) it was held that the “ report of a referee cannot be sent back to him with instructions to make additional findings of facts or conclusions of law.”

In First National Bank v. Levy ( 41 Hun, 461 ) the court followed Gar diner v. Schwab (supra), and -in the course of the opinion, Landon, J., said: “We think the practice of sending a report back to the referee to supply alleged omissions ought not to be encouraged, and if allowed in any case it should be only to supply some merely technical or clerical omission; not to reinvest that officer with judicial functions touching the case theretofore submitted for his decision. The necessity and propriety of such action should be clear.” In accordance with that doctrine we are inclined to say that that part of the order which referred the case back to the referee should fall. No clear necessity for it was presented by the motion papers. (Heath v. N. Y. B. L. B. Co., 146 N. Y. 260 .) Besides, the plaintiff had taken an appeal from the judgment and had filed exceptions to the referee’s report before the motion to require a further decision from the referee was noticed.

We think the order appealed from should be modified by striking therefrom so much as refers the cause back to the referee “ with leave to further report, or to change his decision or direction for judgment and conclusion of law, so that the same shall express his precise or full intention with reference to dismissing the complaint upon the merits or not upon the merits,” and as so modified should be affirmed, without costs of the appeal to either party.

Martin and Merwin, JJ., concurred.

Order modified in accordance with the views stated in the opinion, and as modified affirmed, without costs to either party.