
    The Columbia Mutual Building and Loan Association of New York, Respondent, v. Jacob A. Mittnacht, as Substituted Trustee under the Last Will and Testament of Frances A. Croft, Deceased, Appellant, Impleaded with Others.
    
      Order resettling a decree — it cannot he made where it in effect reverses the decision already made.
    
    One of the defendants in an action brought to foreclose a mortgage having interposed a claim of paramount title, the court decided that it had no power to determine that claim, and decided that the paramount right claimed by such defendant should be excepted from the operation of the judgment by a proper statement to that effect. Both parties submitted forms of the decision and decree, and the court adopted those proposed by the defendant. Subsequently the plaintiff made a motion to resettle the final decree and the decision so as to make such decision and decree practically conform to the form of decision and decree theretofore submitted by the plaintiff and rejected by.the court, the effect of the resettlement being to decree the sale of the premises and the delivery of the possession thereof to the purchaser, although, so far as the evidence showed, the defendant interposing the claim of paramount title had possession of the premises.
    The justice who tried the case, having been transferred to the Appellate Division, the motion was.heard before another justice, who made an order resettling the decree in the manner and form suggested by the plaintiff’s attorney.
    
      Held, that the court had no power to make such order, as its effect was to reverse the deeision made by the justice who tried the case.
    Appeal by the defendant, Jacob A. Mittnacht, as substituted trustee under the last will and testament of Frances A. Croft, deceased, from an order of»the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 31st day of July, 1900, amending a final decree in favor of the plaintiff entered in said clerk’s office on the 9th day of February, 1900.
    
      William, G. Bussey, for the appellant.
    
      John U. Stoutenbmgh, for the respondent.
   Woodward, J.:

This action was brought in the ordinary form for the foreclosure of a mortgage alleged to have been made and executed by the defendant Hurley on December 11, 1895, covering three lots of land. The defendant Mittnaclit, as trustee for the estate of Frances A. Croft, by his answer denied on information and belief that the defendant Hurley had made default, of that there was any money due on account of the mortgage to the plaintiff, and for 9 separate and further defense alleged that the defendant Hurley was hot the real owner of the premises at the time the mortgage was made, but that, on the contrary, the premises were the property of the estate of Frances A. Croft, deceased, and that said defendant Hurley had no power to mortgage or create a lien upon the premises or to bind them in any way. The case was tried in June, 1899, when the title of the said estate to the premises in question was shown by the production of a deed conveying the property to Frances A. Croft on-October 13, 1887, and no evidence whatever was produced to show that Frances A. Croft or her estate had parted with the title or that the mortgagor had any title whatever to the premises. The learned court reserved decision upon the question involved, and in December, 1899, handed down a decision stating concisely the grounds on which the determination was based, as provided by section 1022 of the Code of Civil Procedure, in which it was held that so far as the claim of paramount title was concerned it could not be passed upon in this suit, and that the complaint should either be dismissed so far as the suit had a tendency to affect this paramount right claimed, or else the interest claimed by the defendant Mittnaclit to be paramount to the mortgage should be excepted from the operation of the judgment by a proper statement expressive of that qualification. This latter plan was determined upon and, subsequently, both parties submitted proposed forms of decision, that proposed by the defendant being adopted by the court, in which it was held that the plaintiff is entitled to judgment of foreclosure and sale of the premises described in the complaint as against the defendant Timothy Hurley and all persons claiming by, from or under him * * * and that the defendants in this action and all persons claiming under them be barred and foreclosed of every right, claim, lien or equity of redemption in the said premises, acquired or derived by, from or under the said defendant Hurley.” It was further provided that the form of final decree should be settled on five days’ notice. Subsequently both parties submitted proposed forms, that of the defendant being signed by the justice before whom the case was tried, the decree being ■complete except that the sum of money due upon the mortgage was not filled in, and blanks were left for the amount of costs and allowance. In February plaintiff’s attorney served notice of motion to resettle said decree by inserting the amount of $5,279.72 as the amount due from Hurley on said mortgage, and to also resettle said final decree and said decision so as to practically conform to the original proposed decision and proposed final decree as submitted by the plaintiff in the former motions which had been rejected by the learned justice. The effect of the proposed resettlement would be to decree the sale of the premises, and to direct that the same be delivered into the possession of the purchaser, although, so far as the evidence goes, the title and possession of the property are in the estate of Frances A. Croft, or at least were not shown to be in the defendant Hurley, while the decree as made provided for the sale of “ all the right, title and interest which the defendant Hurley had on the 11th day of December, 1895, or has since acquired in and to the premises.” This motion was returnable and was argued on February 26, 1900, but before it was determined the learned justice before whom it was heard had been transferred to the Appellate Division, and it was subsequently reheard by another justice of the Supreme Court, who made and signed the order resettling the decree in the manner and form suggested by plaintiff’s attorney, with some additions not necessary to be here enumerated. From this order the defendant Mittnacht appeals to this court.

The effect of this order is to reverse the decision of the justice who tried the case, and we are of opinion that this cannot be permitted. When the Legislature gave to this court the'power, under the provisions of section 1022 of the Code of Civil Procedure, to “ award a new trial or grant to either party the judgment which the facts warrant,” it evidently contemplated that errors, irregularities or improper judgments or orders should be corrected, not by orders changing the form and substance by the court at Special Term, but upon appeal to this court; it is the Appellate Division alone which is authorized to “ grant to either party the judgment which the facts warrant,” and it would entail endless confusion and great popular disrespect for the court, if the deliberate judgment of one justice could, upon motion, be overturned by another in the manner here attempted.

The order appealed from should be vacated and set aside, leaving the plaintiff to its remedy by appeal from .the judgment, when the same shall be entered upon the decision of the court.

All concurred, except Jenks, J., not sitting.

Order appealed from vacated and set aside, with ten dollars costs and disbursements.  