Hatch v. . Central National Bank ( 1879 )

The plaintiffs recovered judgment, and it was satisfied. They sought by motion to vacate the judgment, and amend the complaint by adding new causes of action. Leave was granted upon terms. So far as the causes of action were stated in the complaint they were merged in the judgment; the judgment was paid and satisfied. There was no longer a judgment, and the parties were out of court. It is urged by the appellant's counsel that the court had no power to allow the amendment, and the plaintiffs' counsel contends that it was a matter within its discretion. It was going a great way to grant the relief sought; but the application was not without merit, and was one which under a long series of authorities the court had power to grant. If so the order is not appealable. (Lawrence v. Farley, 73 N.Y., 187.) In the case of Minthorne (19 J.R., 244), after judgment and satisfaction. both were opened to allow an amendment by adding to the recovery. It was made necessary by the omissions of the clerk in assessing damages. So in Crookes v. Maxwell (6 Blatchf., 468), the court on motion of the plaintiff made in 1867, opened a judgment recovered in 1862, and then paid and satisfied of record, in order to permit errors in the assessment of damages to be corrected, and this was done, although after the judgment of 1862, a new suit had been commenced for the recovery of the sums so omitted, and the plaintiff defeated because of the statute of limitations.

In Deane v. O'Brien (13 Abb. Pr. R., 11), the plaintiff was allowed to amend by enlarging his cause of action, although he thus avoided the statute of limitations, and "it might affect third parties." These (and there are many other) cases show the power of the court over its own judgments, and its habit to exercise it in aid of justice. It is an inherent power and not limited in matters of substance by the sections of the Code (section 174 of old Code, section 724 of the new Code), and others referred to by the learned counsel for the appellant, while section 723 seems to authorize its exercise in furtherance of justice.

In the case before us the summons claimed an amount corresponding to the sum of all the notes while the complaint was for part only. The suit was commenced when the summons was served, and therefore no question arises here as to the statute of limitations; but even if it did, the precedents are numerous where amendments have been allowed so as to prevent its operation. Balcom v. Woodruff (7 Barb., 13), where after nonsuit an amendment was allowed nunc pro tunc, and in NewYork Ice Co. v. Northwestern Ins. Co. (23 N.Y., 357), the judgment was amended by giving leave to serve a new complaint, in place of dismissal without prejudice. The order in this case may go a little further, but it is in the same direction.

The appeal should therefore be dismissed, but without costs.

All concur.

Appeal dismissed.