Martin v. Martin

138 A.D. 758, 123 N.Y.S. 509, 1910 N.Y. App. Div. LEXIS 1627

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 3, 1910
• Status: Published

Opinion

Clarke, J.:

This was .an action for divorce. ■ An answer .was interposed' but the defendant did not appear upon the trial at Special Term. The complaint alleged the date of .the. márriáge to be the 30th of June, 1897, and writer alia asked that the plaintiff be awarded the custody of the only child of the marriage, a daughter six years old. The learned,court rendered his decision in writing June 18, 1907. He found the date of the marriage as the 30th day of June, 1897; that the plaintiff was a proper custodianand guardian for the-said child ; that the plaintiff was entitled to an interlocutory ■ judgment of divorce dissolving the marriage and awarding to plaintiff the custody of the child Harriet Evelyn Martin.' The interlocutory decree was. entered on the 18th of June, 1907, and it properly stated the date of the marriage; but; due as is claimed to ■ the, inadvertence of the plaintiff’s attorney, it contained no provision awarding the custody of the child to the wife in conformity with the decision. The final decree was entered on the Ytli of October, 1-907. By an obvious mistake the date of the marriage was put as the 30th of June, 1907, instead of 1897. As in the interlocutory decree no provision was made for the custody of the child.

The plaintiff made a motion to amend the final judgment by correcting the date of marriage, and secondly, to amend the interlocutory and the final judgment by awarding the custody of the child to the plaintiff, as demanded in the complaint and provided for in the decision. This motion having been denied, the plaintiff appeals.

The amendment of the judgment to make it conform to the written decision should have been allowed. The power was inherent in the court. In Matter of Henderson (157 N. Y. 423)-the court said:,“All courts, from their very nature and the object of their existence, must possess some inherent power, and the correction of their own records, when affected by some mistake or clerical error would seem to be about as mild an exercise of such‘power as can well be imagined. This power is recognized and perhaps regulated by various statutes, but it does not proceed from or rest upon statutes, since it would exist without them.”

In Ladd v. Stevenson (112 N. Y. 325) Earl, J., said: “ The whole power of the court to relieve from judgments taken through 6 mistake, inadvertence, surprise or excusable neglect ’ is not limited by section 724; * but in the exercise of its control over its judgments it may open them upon the application of anyone for sufficient "reason in the furtherance of justice. Its power to do so does not depend upon any statute, but is inherent, and it would be quite unfortunate if it did not possess it to the fullest extent.”

In Gough v. Mcfall (31 App. Div. 578) the court said : “ It was, therefore, competent for the court to order the judgment amended to conform to the only valid decision which the court had made, and when amended it stood as the only judgment in the case and was authorized by the original decision.”

After the entry of this judgment section 1771 of the Code of Civil Procedure, providing for the custody and maintenance of children and support of plaintiff, was amended so as to read: “ The court may by order, upon the application of either party to the action, after due notice to the other, to be given in such manner as the court shall prescribe, at any time after final judgment, annul, vary or modify such directions, or, in case np. such direction or directions, shall have been made, amend it by inserting such direction or directions as justice requires for the. custody, care, education and maintenance of.'any such child or children in such final judgment or order or’orders.” (See Laws of 1908, chap. 297.)

In the case at bar due notice of the application for the, proposed amendment was. given, and-.there was no opposition to the motion. There is here no attempt to affect the' pecuniary relations of the parties by increasing or decreasing the amount of. alimony fixed by the judgment. It is solely to conform the judgment to the decision in the matter of the custody of -the child.

The order appealed from, should be reversed and the motion granted, but, as there has been, no opposition, without costs.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Order reversed and motion granted, without costs.