John M. Buckingham, Appellant, v. Alfred Dickinson et al., Respondents

John M. Buckingham, Appellant, v. Alfred Dickinson et al., Respondents. (Argued September 16, 1873; decided January term, 1874.) / The record of the decision of a General Term upon an appeal continues so far under the control of the court, irrespective of the members composing it, that it may amend such record, to conform to the decision actually made, although the court granting the amendment is composed in part of different justices from those who heard and decided the appeal. An order granting such amendment is not reviewable here. This was an action tried by a referee, who reported in favor of plaintiff. On appeal to the General Term from the judgment entered on such report, the same was reversed and new trial granted. The order did not state the grounds of reversal. The plaintiff appealed to the Court of Appeals. After the appeal, upon motionjthe order was amended by adding thereto that the reason or ground of such reversal was that it appeared to the court “ that the report of the referee is against the weight of evidence as to the -terms of the contract, which limited the amount of plaintiff’s charge.” One only of the original justices who heard and decided the appeal was present when the amendment was made. Held, that the General Term, as thus composed had power to make the amendment; and thatj as a question incidental to the general power relating to its practice, it was not reviewable here. Upon the facts the court held (Reynolds, C., dissenting) that the findings of the referee were properly reversed. N. C. Moak for the appellant. Alfred Dickinson for the respondents. [MAJORITY — Lott, Ch. C., Reynolds, C.,] Lott, Ch. C., reads for affirmance. Reynolds, C., reads for reversal. All concur for affirmance, except Reynolds, C., dissenting. Order affirmed and judgment absolute against plaintiff.