¶1The papers presented upon this appeal are so meager that it is with great difficulty that the court has been able to get at the precise position of the parties in respect to this motion. There is no question that the court, after the decision of an action at special term, may, upon a less notice than eight days, settle the form of the judgment, and direct the entry thereof, and therefore the order appealed from cannot be reversed upon the ground of irregularity. But we think that, under the pretext of an application at the foot of the decree, no such substantial alteration of the original judgment can be permitted, nor can a judgment be entered relating to a subject-matter which might have been a subject of investigation upon the trial, and which, if the rights of the parties demanded, should then have been considered. It is only as to matters arising subsequent to the judgment for the purpose of carrying into effect the judgment already entered that an application at the foot of the decree can be permitted. In the case at bar, without any proof and without any trial, a substantial right of the plaintiffs is adjudicated upon and determined adversely to them. This, we think,- the court had no power to do. The order amending the judgment should therefore be reversed, and the application for such relief denied, with $10 costs and disbursements. All concur.
13 N.Y.S. 95
Parker v. Linden
Decided January 16, 1891
New York Supreme Court · decided 1891-01-16
Action by John Parker and Robert Graham, executors of James Linden, deceased, against Maria Linden and others, to construe the will of James Linden. It was found as a fact that Jane Smith, one of the devisees in said will named, had gone to New Zealand, and had not been heard from in upwards of 50 years, and, as a conclusion of law, that she had died, without issue and intestate, before the testator.
Decided 1891-01-16