United Appraisal Co. v. Fuca

250 A.D. 739 | N.Y. App. Div. | 1937

In an action brought to quiet title and for injunctive relief and damages, defendants Fuca and Curta interposed an answer denying the allegations of the complaint and setting up, by way of counterclaim, that the contract between the parties did not express the true intention of the parties and asked for reformation. After trial, the court dismissed plaintiff’s cause of action on the merits and rendered judgment in favor of the defendants, reforming the contract in certain particulars and directing an accounting. The judgment was affirmed June 21, 1935, by this court (245 App. Div. 755). Thereafter, by order dated July 6, 1936, the judgment was corrected by amendment. Order amending and correcting judgment reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to an application to reargue the appeal from the judgment herein, if the plaintiff be so advised. The judgment directed that plaintiff account to defendants for rents collected and disbursements made from the date of closing title to the date of the appointment of the receiver, September 28, 1934. The order appealed from sought to correct and amend the judgment to provide that plaintiff account for rents collected and disbursements made from the date of closing title to the date of the entry of judgment, January 4,1935. We are of opinion that this amendment and correction changed the judgment in matter of substance. If error was committed it can be corrected only by vacating the judgment or by appeal. (Herpe v. Herpe, 225 N. Y. 323.) Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur.