
    John Lackner, Respondent, v. The American Clothing Company, Appellant.
    Second Department,
    April 20, 1906.
    Practice — erroneous judgment for plaintiff in Municipal Court of New York when recovery is less than tender by defendant — effect of failure • to move to correct judgment within statutory time—• proper relief; from erroneous judgment may. be had in equity.
    When the Municipal Court of the city of New York has given judgment for the plaintiff, notwithstanding that he has recovered less than a tender paid into ■ court'by the defendant, of which the judge was ignorant, and the defendant has failed to move before that court within five days to amend the judgment as contrary to law, as allowed by section 254 of the Municipal Court Act, neither the Municipal- Court nor the Appellate Division oil appeal has power to correct the erroneous judgment or restrain an execution by the plaintiff.
    
      Neither can relief he had under section 724 of the Code of Civil Procedure, which, it seems, is applicable to said Municipal Court, because the power given to the court thereby is limited to mistakes, inadvertence, surprise or excusable neglect “ of the party seeking relief.”
    The proper remedy to correct such erroneous judgment is, it seems, to be had in a court of equity, which can give appropriate relief and restrain the enforcement of the execution and judgment.
    Appeal by the defendant, The American Clothing Company, from an order of the Municipal Court of the City of Hew York, entered in the office of the clerk of said court on the 31st day of January, 1906.
    
      Harry A. Gordon, for the appellant.
    
      Solon J. Liebeskind, for the respondent.
   Rich, J.:

The plaintiff brought this action to recover the sum of one hundred and sixty-six dollars and sixty-four cents for rent'of real property, alleged to be due" and owing him by the defendant. Before the commencement of the action the defendant had made a tender of sixty-eight dollars and twelve cents. On the return day it filed an answer admitting the allegations of the complaint, alleging a counterclaim of one hundred dollars, pleading' the tender, and concurrently therewith paid the sixty-eight dollars and twelve cents into court, where it remained and yet is, in the possession of the clerk. Upon the trial the justice before whom the case Was tried without a jury, without knowledge of the fact that such tender had been made, rendered judgmentfor the plaintiff for sixty-three dollars and sixty-six cents damages, to which the clerk of the court added a trial fee of two dollars, making a total judgment of sixty-five dollars and sixty-six cents, and taxed costs for the defendant for fifteen dollars. The justice states in his opinion that he is informed by the clerk that he deducted the fifteen dollars costs from the amount of the plaintiff’s judgment and paid the balance, fifty dollars and sixty-six cents, to the plaintiff’s attorney, who on the following day returned it and took a receipt therefor. The plaintiff then .obtained a transcript of the judgment, which was filed in the county of bFew York, and caused an execution to be issued, which was levied upon the defendant’s property in. that county. As soon as the levy was made,- the defendant called the attention of the clerk of the Municipal Court to the fact that the judgment was less than the money paid into court, and the clerk thereupon satisfied the judgment and a transcript of-such satisfaction was filed and entered in Hew York county. The defendant then moved at a' Special-Term of the Supreme Court for an order vacating and setting aside - the execution and levy of the sheriff, and plaintiff concurrently moved for an order reinstating the judgment on the records of the, clerks of Queens and HeW York counties. The Special Term denied thé defendant’s motion and granted that of the plaintiff, basing its decision upon the ground that the. clerk was without, ■power or authority to satisfy the judgment or transcript such satisfaction, i and that the court would not determine the. question of fact presented of whether the trial court intended to render a judgment in favor of the plaintiff for sixty-tjirée dollars and .sixty-six cents in addition to the sixty-eight dollars and thirty-six cents paid into court, or a judgment for sixty-three dollars and sixty-six -cents,, only, upon conflicting affidavits. The -plaintiff then moved in the Municipal Court for an Order amending the judgment rendered so that it would read “judgment for the defendant, with costs,” upon, the ground that the form, of the judgment was improper, which motion was denied, the court holding that it was not within his power to, grant the relief sought. The plaintiff asks this court to . reverse such ruling and grant the motion. •

The opinión of the Municipal Court justice denying said motion clearly establishes that the judgment he intended tó render was for sixty-three dollars and sixty-six cents only,, and that at the time of its rendition he did not. know that the plaintiff had paid a larger sum into court. ■ ' ■ ,

Upon the facts, the judgment should have been for the defendant for costs. The money paid into court immediately became the property of the plaintiff, and he was entitled to take, it at any time. The defendant could not in any event have the money back, or ^ny part of it. After such tender and payment the only question to be litigated was whether the plaintiff' established a cause of action for moré than the amount of the tender. If he failed to prove that he. was entitled to more, than the amount paid into court, judgment should have been rendered for the defendant. It was at the plaintiff’s risk of. paying defendant’s costs if the recovery fell 'short of the amount tendered and the defendant’s risk of losing the amount deposited in the event of his success upon the trial. Such payment was more than sufficient to satisfy the amount- determined by the trial court .to be owing the plaintiff, notwithstanding which he seeks to enforce his judgment, thus taking from the defendant money to which he has no claim or right.

We-should not hesitate to reverse the order appealed from and grant the relief asked were it within our power-to do so, but are reluctantly forced to the conclusion that the appellant has mistaken his remedy and that this court is without power to aid him. The Municipal Court has no jurisdiction or powers except suchas are conferred upon it by statute. The only power to amend a judgment of that court is found in section 254 of the Municipal Court Act (Laws of 1902, chap. 580), and is limited to theexceptions taken' upon the trial, or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence or contrary to law, and must be exercised within five days after the rendition of the judgment. The relief sought, and to which the plaintiff was entitled had he moved within the time limited, arose from the fact that the judgment was “.contrary to law” within the meaning of those Words as used in the section referred to, and at the time the plaintiff’s motion was made the Municipal Court was without power to grant such relief. Granting the contention that section 724 of the Code of Civil Procedure is, by the provisions of section 20 of the Municipal Court. Act, made applicable to the Municipal Court, it does not aid the appellant, as the exercise of the power therein given the court is limited to cases arising from the mistake, inadvertence, surprise or excusable neglect of the party seeking relief. An error of the trial court in the form of the judgment rendered is not one of the grounds upon which the court may act in granting the relief authorized by its provisions.

The plaintiff, however, is not without a remedy. A court of equity can give the appropriate relief and restrain the enforcement of the execution and judgment during the pendency of an action.

The order appealed from is affirmed, without costs.

Woodward, Jenks and Gaynor, JJ., concurred.

Order of the Municipal Court affirmed, without costs.  