Von Schoening v. Buchanan

14 Abb. Pr. 185

Opinion

By the Court

Footnotes

•

*—Barbour, J.

The verdict of the jury in favor of the plaintiff, and assessing the value of the property, necessarily established the fact that the goods were wrongfully detained by the defendants. The plaintiff therefore was entitled to recover at least nominal damages for such detention, and the verdict was incomplete in form, because it contained no such award in terms. (Bemus a. Beekman, 3 Wend., 667.) The omission of the jury in this regard would probably have been supplied by the justice before whom the cause was tried, even without a motion, had the matter been brought to his notice at any time before judgment, under the general power of the court to control and perfect its own record and proceedings. Certainly it was the right of the plaintiff to have the record of the verdict so amended in this particular upon motion before the judgment was entered, for the reason that a nominal verdict for damages in his favor would excuse him from the payment of costs to his adversary. (Code, § 304, subd. 4; Ib., § 305.) The sole question remaining for consideration, then, is whether the plaintiff has deprived himself of his right to have the verdict amended so as to conform to the real facts found, by his failure to move before the entry of the judgment by his opponent. In regard to that, we are of opinion that inasmuch as the papers used upon the motion show that the defendants’ attorney was fully informed of the plaintiff’s claim touching the error in the verdict before the judgment was entered, and as the defendants could not have been deprived of any substantial right to which they were equitably entitled by the omission of the plaintiff to move at an earlier day to correct the verdict, no laches can be imputed to the plaintiff of which the defendants can properly complain.

The power conferred upon the court by the 173d section of the Code is broad enough to cover this case, and we think the motion was properly granted,, in furtherance of justice.

The order should therefore be affirmed with costs.

Present, Bosworth, Ch. J., Robertson, White, Moncrief, Monell, and. Barbour, JJ.