Schoenberg v. Schoenberg

269 A.D. 864, 56 N.Y.S.2d 47, 1945 N.Y. App. Div. LEXIS 4290

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 25, 1945
• Status: Published

Opinion

Plaintiff appeals from an order made on May 3, 1945, amending an order dated August 16, 1944, insofar as it strikes out a provision contained in the original order. Order insofar as appealed from affirmed, with $10 costs and disbursements. The portion of the original order which was excised by the amended order had the effect of denying that part of defendant’s motion to modify the decree of divorce which sought to prohibit plaintiff from changing the name of the children of the marriage of the parties. The amendment corrects a mistake, as the court had not intended to make any adjudication with respect to this part of the relief for which defendant applied. The court had power to correct this error to make the order conform to the determination intended. (Civ. Prac. Act, §§ 105, 108; Matter of Gould, 255 App. Div. 433; Traub v. Arrow Manufacturing Corporation, 207 App. Div. 292, 294.) There is nothing in this record which impels a determination by this court, in the absence of any determination at Special Term, that these children of tender years should bear the name of the second husband of plaintiff rather than' that of their father. Close, P. J., Hagarty, Johnston, Adel and Lewis, JJ., concur.