255 A.D. 433 | N.Y. App. Div. | 1938
In 1931 the respondent on this appeal petitioned the County Court of Seneca county, pursuant to article 81 of the Civil Practice Act, for the appointment of a committee of the person
Appellant seeks reversal of the order on the grounds (1) that the court was without power in the premises; (2) that the matter should not have been determined upon affidavits; (3) that respondent was guilty of laches, and (4) that the original order contained no error.
On the question of power, appellant contends that the final order judicially determined that his fees had not been paid by respondent. Appellant argues that because the court — when it directed that counsel fees be paid to counsel — had before it an affidavit containing the averment that the counsel fees had not been paid, it made a judicial determination in respect to. a question of fact, which determination could not be altered or corrected upon motion. There might be force to this argument if the question of payment had been an issue or had been litigated before the court but such was not the case. The affidavit, referred to, was made by counsel associated with appellant and not by petitioner or one of his attor
The courts are given broad discretionary powers to correct mistakes in their proceedings. (Civ. Prac. Act, § 105.) The rule is well established that “ Courts have always control over their own proceedings, and where there is not express prohibition, may deal with them so that what is right and just may be reached.” (Matter of City of Buffalo, 78 N. Y. 362, 370. See, also, Mingay v. Lackey, 142 id. 449, 455; Matter of Henderson, 157 id. 423, 426.) While decisions on the merits may not be altered or mistakes of law corrected upon motion, clerical errors and inadvertent mistakes of fact may be thus corrected (Matter of Putnam, 220 App. Div. 34), and this power may be exercised after one year, notwithstanding the provisions of section 108 of the Civil Practice Act. (Clark v. Scovill, 198 N. Y. 279, 286; Matter of Marsh, 242 App. Div. 290.)
The record does not disclose that any substantial right of appellant has been at all prejudiced by the order appealed from and it does not appear that the court exceeded its discretionary powers in the matter. In our opinion, it was within the province of the court to amend its order when convinced that the affidavit, upon which it had acted, was factually incorrect.
Appellant contends that the matter should not have been determined upon affidavits. The record discloses that appellant was afforded ample opportunity to present his proofs and it appears, without contradiction, that appellant’s attorney stipulated in open court that the matter be determined upon affidavits.
The questions which remain — whether on the facts the court correctly decided the motion and whether respondent was guilty of laches — require no discussion. It is sufficient to say that the record discloses proofs which amply support the court’s exercise of its discretion in directing that its original order be amended so as to provide for payment to respondent of his counsel fees and disbursements. In view, however, of the controversy that appears to have arisen between appellant and respondent in respect to
All concur. Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ.
Order modified in accordance with the opinion and as modified affirmed, without costs of this appeal to either party.