¶1This is an action in partition, resulting in a final judgment, by which provision was made for the distribution of the avails of certain real estate situate in the city of Brooklyn. The appellant is the substituted trustee under the last will and testament of Sarah FT. Eagleton, and he seeks by a motion made at Special Term to have the judgment amended by the insertion of certain clauses of the decree of the Surrogate’s Court of Flew York county. There is no *252doubt of the power of the court,, under the provisions of section 124 of. the Code of Civil Procedure, to amend a judgment to make it conform to the facts upon which the judgment was based ; but this is a power within the discretion of the court having jurisdiction of the question, and, in the absence of facts therein to show that there has been an abuse of this discretion or that the court has failed to exercise a discretion, there would seem to be no good reason why be order of the court should be reversed!.. The court had the decree d, the Surrogate’s Court before it; the appellant’s attorney appeared aril did not except to findings or on application for an interlocutory judgment ask anything from the court. He did not appear upon applyation for a final judgment, and, under the circumstances of ..this o.ge,.we are unable to say tliat'the court below failed of a proper exercisv of its discretion in refusing to amend the judgment in the manner islced for by the appellant.
¶2It is uzged, however, on behalf of the appellant, on the authority of Oakley v. Cokalete (6 App. Div. 229), that, as the justice before whom-this potion was made was not the one who heard the case in the first instance, it was .not proper for him to determine, the motion. The appellant'-js not, in our opinion, in a very good position to urge this objection. '-.The motion to amend the judgment was made by the appellant; lie voluntarily submitted the question'to the discretion of the justice presiding- at the Special Term, and lie cannot now be heard to say that the matter should have been heard by the justice who conducted the trial of the ease in the first instance.
¶3It is also to be observed that there was no power in the court to grant- the relief .asked for.. The trustee and moving party was a party to the action. His lien on the property sought to be partitioned, if any, it. was -necessary foi; him to set up by answer and establish,by proof. (Winfield v. Stacom, ante, p. 95.) The amendment asked for would vary the rights of the parties as fixed by the decision of the court mid the judgment entered thereon. This the court could not grant. (Heath v. N. Y. B. L. B. Co., 146 N. Y. 260; Fannon v. McNally, 33 App. Div. 609.)
¶4The order appealed from should be affirmed, with costs.
¶5All concurred,- except Bartlett, J., not- voting..
¶6Order affirmed, with ten dollars costs and disbursements.