Nassau County Trust Co. v. Saleeby

254 A.D. 687, 3 N.Y.S.2d 512, 1938 N.Y. App. Div. LEXIS 7141

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1938
• Status: Published

Opinion

In an action to set aside certain conveyances as being in fraud of plaintiffs and others, and for other relief, orders dated January 8, 1937, and February 6, 1937, which respectively (1) vacated the order dated July 22,1935, resettling and amending the judgment dated June 1, 1935, and (2) directed the clerk of Nassau county to mark the judgment docket accordingly, severally reversed on the law, with ten dollars costs and disbursements to the appellants jointly, and motion to vacate the resettled and amended judgment denied, with ten dollars costs to the appellants jointly. The judgment of June 1, 1935 (243 App. Div. 797), entered upon the determination of this court, modifying the former judgment in this action, did not conform in its relevant terms to the order of this court modifying the judgment appealed from and affirming the same as modified. The Special Term in entering the judgment upon such determination acted merely ministerially. (Macomber v. Sterling, 230 App. Div. 598, 599-600; Civ. Prae. Act, § 621.) Therefore, it had the power to resettle and amend that judgment, thus erroneous in form, to make it conform. (Civ. Prae. Act, § 105.) The Special Term properly exercised that power in its order dated July 22, 1935, the subsequent vacatur of which by the order of January 8, 1937, appealed from, was error. The order of February 6, 1937, appealed from, of necessity falls with our reversal of that of January 8, 1937. This ruling is not inconsistent with our previous determination (Nassau County Trust Co v. Saleeby [Consol. Action], 248 App. Div. 783) construing the phrase “ as interest may appear.” Lazansky, P. J., Davis, Johnston, Adel and Taylor, JJ., concur.