79 A.D. 561 | N.Y. App. Div. | 1903
This action was begun' in October, 1895. A firm of merchants had claims, against the United ¡States government for duties improperly imposed on merchandise imported into the United States. The plaintiff procured the defendant to be employed as an attorney by those merchants and the defendant brought suit on behalf of such firm, and having succeeded in-the establishment of the claims against the government, compensation was paid him for his services. The plaintiff claimed to be entitled to one-half of that compensation under a specific agreement with the defendant and brought this suit to recover such one-hall. A • demurrer was interposed! to the complaint. It was overruled at Special Term, but on appeal. to this .court the judgment of the Special Term was reversed and. the demurrer was sustained with leave -to the plaintiff to serve an amended complaint. . (5 App. Div. 324.) It was held by this court that the agreement between the plaintiff and the defendant was in violation of section 74 of the Code of Civil Procedure. The plaintiff served .art
It is suggested by the respondent that the decision and judgment were inadvertently made, so far as the insertion therein of the words “ upon the merits ” is concerned; but we find nothing in the record showing that there was inadvertence. The words stricken out were properly inserted, for the final judgment was on the merits. The subject involved was the validity of the agreement which lay at the foundation of the plaintiff’s cause of action. That being invalid, there was no claim, and every right which the plaintiff asserted fell with the adjudication of the invalidity of the agreement.
A judgment in an action in which questions of law are alone-involved is as conclusive between the parties as a judgment in an action in which are involved issues of fact as well as of law.
(Henck v. Barnes, 84 Hun, 549; Gould v. Evansville, etc., R. R. Co., 91 U. S. 526.) A demurrer to a complaint because it does not state facts sufficient to constitute a cause of action raises an issue which involves the merits. (Alley v. Nott, 111 U. S. 472.) That
The final judgment entered upon the demurrer in this case, going as it does to the fundamental right of the- plaintiff and determining that no right cognizable at law existed, was an adjudication on the merits, and, being so, that final judgment as entered - was correct. The action of the court in granting this motion makes a new judgment and a different determination from that which was made on the- trial of the issue in the cause. There is no doubt of the power of the court to amend a judgment by striking out the words “upon the merits,”' where it is clear that there was no authority or jurisdiction to enter a judgment containing those words, and where the only permissible judgment was one simply dismissing a complaint. Such was the case of Card v. Meincke (70 Hun, 382), but the courts have not gone so far as to say that a judgment rightfully rendered, and to which a party was entitled, may be set aside only upon such a statement as was urged on the application now under consideration.
In addition to what has been said, the gross laehes of-the plaintiff 'in moving is sufficient to call for a reversal of this order. He took 'no appeal from the final judgment, but allowed five years or mofe
The order appealed from should be reversed, with ten dollars costs, and the motion to amend the judgment denied, with ten dollars costs.
Van Brunt, P. J., Hatch and Laughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.