Rockwell v. Carpenter , 32 N.Y. Sup. Ct. 529 ( 1881 )

Learned, P. J.;

If possible, I should very willingly agree to affirm the order appealed from, because it appears to have worked out what is called “ substantial justice.” But I am unable to do so, for the reason that the order seems to me to violate an important principle, and to be of a dangerous tendency.

The Hettrichs made a general assignment to Carpenter for the payment of their debts. Rockwell brought an action of replevin against Carpenter, and seized some of the property. Carpenter gave the requisite bonds and took the same back. Afterwards Peters, a receiver of the Hettrichs, appointed under proceedings supplementary, brought this action to set aside the assignment as fraudulent. Both this action and the action of Rockwell were tried at the same Special Term, before the same justice, October, 1880, and his decision in each case was rendered about March 5, 1881. In the Rockwell' action judgment was entered against Carpenter for $334.05 damages and costs. In the action of Peters, receiver, judgment was entered declaring the assignment fraudulent, and adjudging that Carpenter pay the plaintiff, out of the sum of $2,500 which was in his hands December 17, 1879, the day of the commencement of the action, $2,196.17, being the amount of the judgments in the actions in which Peters was appointed receiver, with interest and costs. This judgment appears to have been entered March 5, 1881.

Subsequently Carpenter made a motion on affidavits setting forth that all the assets which had come into his hands as assignee were $2,631.37. That before the commencement of this action he had paid out $430.77, and that Rockwell had recovered against him $334.05, and asking that this judgment of Peters against him be modified so as to require him to pay only the balance in his hands after deducting these expenses and the Rockwell judgment.

Thereupon on the 19th of April, 1881, the Special Term, held by the same justice who tried 'the actions, made an order, stating that Carpenter ought to have been charged with $2,631.37 and interest, making $2,786.37, and credited with the above amounts, in all $766.27, leaving a balance of $2,020.10, and ordering that the roll be taken from the files and the decision and judgment be amended by declaring that the assets in the defendant’s hands applicable to plaintiff’s demands and costs are $2,020.10. From this order the plaintiff appeals.

Now I admit to the fullest extent the right of this court to correct what are properly called mistakes, that is, clerical errors, defective papers and the like. For instance in Mechanics’ Bank v. Minthorne (19 Johns., 244) there was judgment for want of plea. Therefore the declaration, which was on a promissory note, was admitted. The clerk made a mistake in computing the interest. The court corrected the mistake even after payment of the judgment. The correction involved no new fact and no new decision of law. Lawrence v. Cornett (4 Johns. Ch., 545) was the case of the amendment of a decree before enrollment. Before enrollment the Court of Chancery would rectify obvious mistakes; but the general rule was that afterwards it could be altered only by bill of review. (1 Barb. Oh. Pr., 349, 366.) Enrollment was analogous to filing a judgment roll in the Supreme Court. Pettigrew v. Mayor (17 How., 492) is a Special Term case. It was a motion to set aside and vacate a judgment and report of a referee after trial. It was a case where a defendant applied for a new trial on the ground of some alleged fraud or mistake; and that was the relief granted. There is no question about the right to grant a new trial for surprise and the like in a proper case. But that is not what the Special Term did in the present case. Levy v. Joyce (1 Bosw., 622) is a case of the same nature. The judgment was opened so as to permit a defendant to make certain proof which, by- mistake, he had neglected. The court did not change the decision already given on the proof, but allowed, to a limited extent, a new trial. In McCall v. McCall (54 N. Y., 541) the court refused to set aside a judgment, but allowed a party to bring-another action, ordering that the judgment already entered should not be a bar. New York Ice Company v. Northwestern Insurance Company (23 N. Y., 357) decides nothing, because the appeal was dismissed. Anything said in the opinion has only the weight of the good sense contained in it. Kamp v. Kamp (59 N. Y., 212) holds that, in an action for divorce, after judgment the court cannot make an order for alimony. This was on the ground that the judgment was final as to the matter litigated and as to every matter which might have been litigated. That decision seems to condemn the order now appealed from. So the case of McLean v. Stewart (21 Sup. Ct. N. Y. [14 Hun], 472) was one where an action had been tried before a judge without a jury, a decision made and judgment thereon entered. Afterwards the same judge, on motion, changed his decision and judgment as to a small part of the amount involved. The General Term held that he could not do this; that the change might be proper, but that it related to the merits, and could only be made upon a rehearing or after review by an appellate court. That case is closely analogous to the present. There is no question that Carpenter might have moved for a new trial, on the ground of surprise, newly discovered evidence and the like. If he had had a new trial, the question of what expenses he had paid and whether they were reasonable would have been tried on common-law proof. Of the right to such a tidal his opponent has been deprived. Probably (though we express no opinion on that point) the facts set up in his affidavits would justify a court in granting him a new trial on the usual terms. But that is not the relief he has obtained. He has procured an order which varies the findings of fact in one respect; which finds new facts, and which adopts a principle of law not contained in the decisi on, and which changes the judgment. It varies the findings, because it finds that Carpenter had $2,786.37 in his hands instead of $2,500. It makes new findings of fact, because it finds that he incurred expenses, $430.77, aud has suffered a judgment for $335.50. It adopts a principle of law not contained in the former judgment, because it holds that his expenses and this judgment recovered are to be deducted; and it changes the judgment by reducing the amount.

Now, it is very possible that if these questions had been tried by court the court would have properly come to the result shown in the order. The difficulty is that these matters were not tried, or if tried the court came to the result stated in the decision which is contained in the judgment. In fact the judgment in favor of Rockwell was not recovered until the judgment in the present case was recovered. So that the Rockwell judgment allowed by the order as a deduction was not in existence in October, 1880, when this case was tried. The court, therefore, modifies the result of a ease tried in October, 1880, by the fact that a judgment was recovered in March, 1881.

There is another objection to this order. The complaint in this action states that Carpenter at the commencement of the action had in his hands about $2,500 avails of the property assigned. This allegation, with others, the answer admits, denying the alleged fraud. The plaintiff therefore, as his claim amounted to less than this sum, had no occasion to show, except by this admission, what Carpenter had, and the justice who tried the case probably adopting the admission found that Carpenter had $2,500 proceeds of the assignment at the commencement of the action. Thus we have an admission of the defendant of the very point on which the Special Term, upon affidavits, has altered the decision and judgment.

In brief this is not the case of a clerical mistake; it is the case of alleged error in findings of fact and of law. The error can be remedied only on appeal or on a new trial granted for good cause and on the usual terms.

The order should be reversed, with ten dollars costs and printing disbursements, and the motion denied, with ten dollars costs. This is without prejudice to any motion which Carpenter may make for a new trial if he be so advised.