Lynch v. Lynch , 226 N.Y.S.2d 491 ( 1962 )

McClusky and Henry, JJ. (dissenting).

We dissent and vote to affirm. “ The function of orders nunc pro tunc is to correct irregularities in the entry of judicial mandates or like procedural errors.” (Mohrmann v. Kob, 291 N. Y. 181, 186.) Here there were no such irregularities or errors. The proceedings were entirely regular. They accorded with the usual practice and with the Buies of Civil Practice. (Rules Civ. Prac., rule 191.) “ The decision was the only authority for entering the judgment.” (Cornell v. Cornell, 7 N Y 2d 164, 168.) It was not signed until September 23, 1958, and the ministerial act of entering the judgment could not take place until that date. In our view Special Term’s announcement made at the conclusion of the proof was not a decision of the court upon which a judgment could be prepared and entered. It was merely an expression of the court’s views, designed to guide plaintiff’s attorney in his preparation of the decision, required to be made by rule 191 of the Buies of Civil Practice. Furthermore, the appellant herein applied for a marriage license almost exactly 90 days after the trial took place and was advised that the application was premature. She knew there was some question as to whether or not she could remarry, but nevertheless proceeded ahead. There is little, if any, ground for the exercise of equitable consideration in behalf of the appellant.

Bastow and Halpern, JJ., concur with Williams, P. J. ; MoClusky and Henry, JJ., dissent and vote to affirm in a memorandum.

Order reversed, without costs of this appeal to any party and application granted, without costs.