
    Richard Delafield and Others, Appellants, v. The J. K. Armsby Company, Respondent.
    First Department,
    March 6, 1908.
    Trial — clerk cannot' change verdict to award interest after discharge of jury.
    After the clerk .of the court has entered a verdict in his-minutes without allowing interest, and the jury has been discharged, he is without power to alter the minutes at the instance of the successful party to allow interest without the knowledge of the court or the other party, although the verdict as. originally reported was '' with interest.”
    Although the complaint claimed a specified amount with interest for a breach of contract to sell and deliver goods, it cannot he maintained" that the aforesaid alteration of toe verdict did not change its legal effect, on the theory that the plaintiffs were entitled to interest as a matter of right, where it appears from the opinion of the trial judge that the plaintiffs were not entitled to interest .and the evidence on that issue is not before the Appellate Division.
    The fact that the jury awarded an amount “ with interest” does not indicate that they found that'the interest was to be computed from the date stated in the complaint.
    Appeal by the plaintiffs, Richard Delafield and others, from an order of the Supreme Court, made at the .New York Trial Term . and entered in the office of tlie clerk of the. county of New York on the loth day of January, 1908, correcting the clerk’s minutes of. the proceedings in the above-entitled action by striking out the words “with interest” from the record of the verdict.
    
      John Vernoio. .Bonvier, Jr., for the appellants.
    
      Messmore- Kendall, for the respondent:
   McLaughlin, J.:

This action was brought to recover damages-for the breach of a contract for the sale and delivery, of canned salmon-. The amount claimed in the complaint was $9,450 with interest from December 7, 1900. A trial of the action resulted in a verdict in favor of the plaintiffs. The foreman of the jury,'in announcing the verdict, said-: “We find in favor of the ¡i lain tiffs -for the full amount claimed, with interest,” whereupon the learned trial justice said, “ I>y full amount you mean the amount sued for in the complaint, which is $9,450,” and the foreman .of' the jury answered, “We do,” repeating the amount, and thereupon the clerk, in recording the verdict, said: “Gentlemen of.the Jury, hearken to your verdict as it stands recorded. You say you find in favor of the plaintiffs and against the defendant for the sum of $9,450, and so say you all,” to which statement no dissent was made. The clerk- then made the following entry in his minutes: “The Court charges the jury, who say that they find a verdict for the plaintiffs for $9,450,” and the ' jury was thereupon discharged. " A few days thereafter the clerk, at the request of counsel for the plaintiffs, without. consultation with the court and in the absence of any .representative of the defendant, changed, the verdict 'as recorded by adding thereto the words “ with interest,” Therg^ft©1’ defendant moved to strike out the words thus inserted. The -motion was granted and plaintiffs have appealed.

• The papers used upon the motion showed, in addition to the foregoing facts, which were stipulated, that the minutes of the stenographer at the trial contained the following: After' deliberation the jury returned a verdict in favor-of the plaintiffs for the sum of $9,450 with'interest.” The affidavits of plaintiffs’counsel and the foreman of the jury are also to the effect that the verdict was in favor of the plaintiffs for the full amount claimed, with interest.”

The motion was properly granted. The clerk had no authority to change his minutes- at the instance, of one party, without the knowledge of the court or the other party'. The change was material. If the verdict included interest on the amount found due the plaintiffs, from the date for which interest was claimed in the complaint, the recovery was increased several thousand dollars. When the jury had announced its verdict, the clerk had entered it in his minutes,-and the jury had been discharged, the verdict could not be changed by the clerk. The trial had terminated. (Warner v. N. Y. C. R. R. Co., 52 N. Y. 437; Lee v. McLaughlin, 16 Civ. Proc. Rep. 151; Herzberg v. Murray, 8 J. & S. 271; Isbell-Porter Co. v. Braker, 120 App. Div. 384.) To permit an alteration of the. clerk’s minutes, which increases or diminishes á liability, as this alteration does, after the jury has been discharged, might lead to great abuses:

Hot only this, but the learned justice who presided at the trial, as appears from his opinion, does not entertain the view that the verdict as rendered by the jury included interest* He says: “ It has been my invariable practice, upon the coming in of a verdict, where the jury allow interest, to have the interest computed then and there, so that the jury may finally pronounce a verdict for a precise sum, which would include the interest.” But it is said the words inserted did not change the legal effect of the verdict; that the plaiptiffs ■ were entitled, as. a matter of right, to interest, the amount of which recpiired only computation. The answer to .this suggestion is that the trial court, after listening to the evidence, as also appears from his opinion, reached the conclusion that the plaintiffs were-not entitled to interest on the verdict, and the evidence fs not before ns, ¡

ÍNov do I see, if the words which the clerk inserted in his minutes, liad not been stricken out, how a computation of interest could be made with any degree of accuracy. There is nothing to indicate from what date interest is to be computed. The complaint claims interest from a certain day, but can it be inferred, because the jury said'“with interest,” that-it had that daté’ in- mind? I do not think so. . ■ '

In either view, therefore, it seems to me the court properly . granted the motion, and the order appealed from should be affirmed, with ten dollars costs and disbursements.

Patteeson, P. J., I.g-raham, Claeke and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  