Rich v. Markham , 92 Hun 78 ( 1895 )

HARDIN, P. J:

It is contended by the appellant “that the justice never rendered any judgment until the 19th of April, 1893, and after the lapse of the four days after final submission, and after the cause had passed from his jurisdiction.” We think the facts stated in the return and amended return of the justice are opposed to this contention of the appellant. The cause was tried on the 14th of April, 1893, and submitted to the justice for decision; and, inasmuch as he was entitled to four days, the last day for the rendition of a judgment was the 18th day of April, 1893. On that day he made an entry as follows:

“Judgment is hereby rendered in favor- of defendant, and against plaintiff, for $40.66 damages, besides costs of the action. W. H. Eggleton, J. P.”

In the aménded return the justice certifies, viz.:

“On April 18, 1893, I determined that the defendant was entitled to recover damages against the plaintiff to the amount of $40.66, and so entered the same on my docket and on the minutes of the trial kept by me, besides the costs of the action; and on the same date, to wit, April 18, 1893, I entered the items of costs which were to go in the judgment, as follows: * * * The item for serving summons was first entered on the docket among the items of cost, April 19, 1893. I left the amount of costs unfinished, in order to obtain from plaintiff’s counsel the amount of witness and subpoena fees on the part of plaintiff, in order to include them in the judgment, being of the impression that they should be included in the judgment; and, not obtaining the information desired from plaintiff’s counsel in reference to said witness and subpoena fees, I thereupon, and on the 19th of April, 1893, finished the item for filing papers by inserting 24 as the number of papers filed, and $1.20 as the total for filing papers, and also at the same time entered among the items of cost the items for serving summons, $3.25, and immediately footed up the costs, and arrived at the sum of $7.95 as the costs of the action included in the judgment, and arrived at the sum of $48.61 as the total' amount of the judgment against the plaintiff.”

When the justice, on the 18th, rendered a decision upon the merits, and made his entry of judgment for the amount of damages, a valid judgment was rendered against the plaintiff, and it was beyond the power of the justice to destroy the same by adding costs thereto on the following day. We think the facts in relation to the acts of the justice bring the case within the rule laid dow7n in Dauchy v. Brown, 41 Barb. 555. In that case it was held that certain alterations did not make the judgment void; “that, being made after the time limited by statute for the justice to enter judgment and enter it in his docket, they were clearly void acts, as much as if they had been done by a stranger, and, being void, they could not affect the judgment.” We are entirely satisfied with the opinion of the court delivered by James C. Smith, J., and we think the authorities cited in the opinion fully sustain the conclusion reached.

Appellant calls our attention to Putman v. Van Allen, 46 Hun, 492. We think that case differs from the one before us. In that case the trial was before a jury, on October 1, 1885. In that case the justice did not write “Judgment” opposite the total items; and, upon.the facts disclosed, it was held that his acts on the 5th of October were without authority, and that the judgment attempted to be entered on that day was clearly void, “as having been rendered, not forthwith after the verdict, * * at a time when the justice had no right to enter a judgment.” In the course of the opinion delivered by Williams, J., he said:

“This judgment appealed from was clearly void as having been rendered not forthwith after the verdict, but four days later, at a time when the justice had no right to enter any judgment.”

And that judge further said, in the course of his opinion, “that no judgment was rendered or entered October 1,1885.” The cáse, therefore, differs essentially from the one in hand.

The principal question involved in this appeal is carefully discussed in the opinion of the learned county judge, and we are satisfied with the views he there expresses; and for the reasons therein stated, as well as upon the views we have already expressed, we are of the opinion that the action of the county court was proper.

Judgment of the county court of Lewis county affirmed, with costs. All concur.