NEW YORK ICE COMPANY a. NORTHWESTERN INSURANCE COMPANY

NEW YORK ICE COMPANY a. NORTHWESTERN INSURANCE COMPANY. Supreme Court, First District; General Term, December, 1860. Amendment of Judgment.—Power of Court to amend on Motion. The court have not power to amend a judgment, on motion, by qualifying its provisions in a respect in which there was no mistake, nor any omission of a direction which would have been inserted, as of course, if originally asked for. A judgment dismissing the complaint without prejudice to a new action, cannot be amended on motion by giving leave to serve a new complaint in the same action. So held, where, by the limitation of the cause of action, no new action could be brought. Appeal from an order amending a judgment. This action was brought on an insurance policy, and by the terms of the policy, the time within which action must be brought upon it was limited. The action was tried by the court without a jury, and the complaint was dismissed on the ground that the cause of action was such that it should have been tried at a circuit before a jury. The dismissal was without prejudice to a new action. The decision is reported 10 Ante, 34. The time limited by the policy having expired, plaintiff obtained an order amending the order of dismissal, so as to allow him to sérve a new complaint in the same action. The defendant appealed. [MAJORITY — By the Court.*—Bonney, J.] By the Court.*—Bonney, J. This action was tried at special term, held on 23d December, 1859, judgment was rendered that the complaint be dismissed without prejudice to plaintiff’s right to bring an action at law upon the policy of insurance set out in the complaint. On application of the plaintiff, an order was made at special term on 5th July, 1860, that said order (judgment), dated 23d December, 1859, be amended, as of 5th July, 1860, by adding after the words “ set out in the complaint,” the words, “ or the plaintiffs may serve a new complaint at law in this action on payment by the plaintiff to the defendants of all interlocutory costs since the filing of the complaint, and costs of this motion, ten dollars.” Prom this order of 5th July the plaintiff has appealed. By the terms of said policy, the time within which an action may be brought upon it is limited, and that time has expired. And the amendment of said judgment is therefore necessary to enable the plaintiff to prosecute an action at law upon it. The amendment appears to me not unreasonable or inequitable, but I do not see that the court has any power to make it. Final judgment, dismissing the complaint, was duly rendered and entered. And there is no allegation or pretence of any mistake or omission therein. The judgment is precisely what it was intended to be, and disposes of the whole case. The amendment has been asked for and granted upon considerations not presented to the court at the hearing, and is intended to give to the plaintiff relief not then contemplated by any one. The Code (§ 173) authorizes the court, after judgment, to amend any pleading, process, or proceeding, by adding or striking out the name of any party, by correcting a mistake in any respect, by inserting other allegations material to the case, or conforming the pleadings or proceedings to the facts proved; but such authority does not reach this case. In the case of Clark a. Hall (7 Paige, 382), it was held by the chancellor that a decree cannot be varied in substance, without a rehearing, but it may be amended or corrected on motion as to mere clerical errors, or by inserting any provision or direction which would have been inserted, as a matter of course, if the same had been asked for at the hearing, as a necessary or proper clause to carry into effect the decision of the court. This case states the power to amend a decree or judgment on motion, in as broad terms as any that has fallen under my notice, but in my opinion is not authority for making the order now before us; and in my judgment that order should be reversed, with ten dollars costs of appeal, to the respondent. Present, Sutherland, P. J., Ingraham and Bonney, JJ.