
    H. W. Miller, Inc., Appellant, v. Thomas B. Leahy Building Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1916.)
    Judgments — correction of — reinstatement of — evidence — Municipal Court Code, § 6 (7).
    Under section 6 (7) of the Municipal Court Code the Municipal Court of the city of New York upon the theory of correcting a judgment entered in favor of plaintiff and sustained by the evidence is without authority to enter judgment in favor of defendant on a counterclaim, and on motion the origina1 judgment will be reinstated subject, however, to an application to correct and vacate it on sufficient grounds.
    
      Appeal from a judgment and orders of the Municipal Court of the city of New York, borough of Manhattan, fourth district.
    Montefiore M. Henschel (Andrew S. Fraser, of counsel), for appellant.
    Aaron Honig, for respondent.
   Philbin, J.

This is an appeal from a judgment of the Municipal Court of the borough of Manhattan, fourth district, entered in favor of the defendant and against the plaintiff on a counterclaim, and from an order denying the motion to set aside said judgment and for a new trial. Appeal is also taken from an order which vacated, amended and set aside a judgment previously entered in favor of the plaintiff.

The plaintiff sued to recover a sum alleged to be due for certain work, labor and services, and materials furnished, and for which the defendant agreed to pay. A similar action was brought as to another contract of a like nature relating to another building referred to as the Nurses’ Home. The two actions were tried upon the same record and for convenience of designation they were known as the Hospital Pavilion action and the Nurses ’ Home action. On this appeal we are only concerned with the former action in relation to the hospital pavilion. The defendant admitted that there was due the plaintiff the sum of $468.60, but put in a counterclaim of $503.34, claimed to be due defendant in relation to another transaction between the parties. The case was tried without a jury, the trial taking place on the 14th of October, 1915. Thereafter, on the 20th of October, 1915, the justice rendered judgment in favor of the plaintiff for $636.60, and costs, judgment was duly entered accordingly and was so recorded in the office of the clerk. On the 21st of October, the following day, without anything further transpiring in the way of motions by or notice to either party, or additional evidence, the justice handed down another decision reading as follows: I hereby find and decide that defendant is entitled to judgment in its favor, with costs, and to an affirmative judgment on counterclaim in the sum of $14.74, and the clerk is hereby directed to enter judgment accordingly, correcting judgment heretofore entered on the 20th of October, 1915.” The plaintiff, thereafter, and on the 29th of October, 1915, made a motion to vacate, correct and modify, in furtherance of justice and for error, the judgment entered in favor of the defendant and to reinstate the judgment entered in favor of the plaintiff for $636.60, and for a new trial. The motion was denied.

It does not appear from the foregoing, that the justice expressly intended to vacate the first judgment, but proceeded on the theory of a correction of the same. The right to do so is the principal ground for appeal. If the court had authority, then I think that the second judgment in favor of the defendant should be allowed to stand, as it is adequately supported by the proof and there was no prejudicial error committed during the trial. Taking up, therefore, the question of the court’s authority, it will be observed that there are two aspects presented — first, the right of the court to nullify the original judgment in favor of the plaintiff, and, secondly, the right to direct a new judgment in favor, of the defendant. Nothing is disclosed by the record to indicate upon what ground the justice assumed to act. It is not made clear why, in furtherance of justice for any error in form or substance, the so-called correction should have been made. It would seem obvious that to nullify a judgment, duly entered, and to substitute therefor an entirely different adjudication, cannot be considered a correction within the meaning of the act. Mun. Ct. Code, § 6, subd. 7. The effect of the court’s action was not merely to correct the original judgment, but to vacate it and, in that event, the only function that he could then perform with respect to the litigation was to order a new trial. There is every reason to believe that the power vested in the Municipal Court in relation to judgments under the Municipal Court Code was wisely bestowed and serves a useful purpose, but there is no reason why its use should be extended beyond the plain meaning of the act. As was said in Petsche v. McDonald, 94 Misc Rep. 655, the error in form or substance referred to in the law plainly relates to errors found in the record itself, for such an error only can be one in form or substance, and if a judgment be vacated the issues then remain undetermined and a new trial must be had as a matter of course. The original judgment in favor of the plaintiff was sustained by the evidence, and, as has already been said, there was nothing to show that any error occurred in relation to the entry of that judgment.

It must be found that there was error in mating the orders appealed from and that the judgment for defendant was unauthorized. This conclusion will have the effect of restoring the judgment originally entered in favor of the plaintiff, but it is not intended to say anything that would interfere with the court giving consideration to any application made to correct and vacate said judgment upon sufficient grounds.

Judgment and orders appealed from reversed with thirty dollars costs, and judgment of October 20,1915, reinstated.

Guy and Bijur, JJ„, concur.

Judgment and orders appealed from reversed, with costs.  