124 N.Y.S. 1033 | N.Y. App. Div. | 1910
This appeal is from an order of the Special Term that amends a decision upon trial at Special Term, and the judgment entered thereon. At the conclusion of the- trial each party submitted a decision; thé court, without further notice or requirement for settlement on notice, signed the decision submitted by the plaintiff, and the judgment directed in accord was entered. The judgment provided that the plaintiff, as a private consumer of water, was entitled to a supply of water to his house and to his stable through two separate service pipes, one to each, at “ a flat rate not to exceed $22.50 per house and $5 per stable, per annum, suclr supply to be unlimited by meters or any other device other than the size of the taps or openings in the defendant’s water mains, connecting such service pipes or pipe, to house and to stable, and which taps or openings in said mains shall not exceed three-quarters (f) of an inch, inside diameter, and with the right and privilege to the plaintiff to use such supply of water upon his premises, for the usual domestic uses of water, in and about the plaintiff’s premises and buildings thereon, and the defendant, its officers and agents, are hereby permanently en joined until October 22,1924, from charging or exacting a greater charge than hereinbefore stated, or from varying or altering
I- think that the order must be reversed. The judgment expressly afforded the right to the plaintiff to take the water from the defendant in a supply “unlimited by meters,” while the amendment affords the express right to the defendant to maintain a meter in the premises of the plaintiff. “ The purposes stated in said order ” seem to be the regulation and limitation of the'supply. Hence we have this situation. The judgment affords the right to a supply unlimited by meter, the amendment denies the right save as limited by meter. The application of the defendant does not rest upon contention of any error or mistake, or that the decision is not in accord with the record, but, in the language of Andrews, J., in Standard v. Hubbell (123 N. Y. 527), it is “ to limit the legal effect of the judgment to meet some supposed equity subsequently called to its [the court’s] attention.” Such an order is, in the language of Freeman on Judgments (4th ed. § 70), “ clearly judicial and revisory, being devoted to correcting its supposed errors or its want of action, and not to making its records speak the truth.” The same learned author points out in the same section, citing authorities, that .in this State the omission from a decree of any matter which if applied for on the hearing would have been granted as a matter of course, “ as necessary or proper to carry into effect the decision of the court,’ will be supplied on motion.” But how can we assume in the face of the direct provision of the judgment that the supply should be unlimited by meter, that the court upon the hearing would have . awarded to the defendant the right to limit the supply by meter ?
The order is reversed, with ten dollars costs and disbursements, and the motion denied, with costs.
Woodward, Thomas, Rich and Carr, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.
