
    NEW YORK COMMON PLEAS.
    David Harper agt. Isaac Hall.
    The general term of the marine court of the city of Hew York has power and authority on motion, to correct the entry of its judgments and decisions, the same as that power is possessed by the general term of the supreme court.
    Consequently, where the plaintiff moved and obtained an order to dismiss the defendant’s appeal to the general term of the marine court, for want of prosecution; but erroneously made the order provide that the judgment appealed from be affirmed, with costs: Held, that the general term had the power to correct such error, so as to make the order conform to the real decision of the court.
    
      New York General Term,
    
    
      November, 1865.
    
      Before Daly, F. J., Brady and Cardozo, Judges.
    
   By the court, Cardozo, J.

The defendant appealed to the general term of the marine court, from a judgment ag'ainst him at the special term. The respondent moved to dismiss the appeal for want of prosecution, which motion was granted; but the attorney who prepared the order, erroneously made it also provide that the judgment appealed from be affirmed, with costs. The respondent discovering that the affirmance of the judgment was improperly inserted in the order, moved the general term of the marine court to correct the order, so as to make it conform to the real decision of the court. This motion was granted, and by an order of the general term of the court below, the correction was made.

The question before us is, had the court the power which it has exercised ? The point is not free from difficulty, but after very careful consideration, I have concluded that the marine court has not exceeded its authority. It may be conceded that prior to the act of 1853 (Session Laws of 1853, chap. 617, p. 1165), the marine court would not have had any power to correct the entry of its judgment. This court held in an unreported case, that where a justice of one of the district counts having discovered after he had entered a judgment, that his calculation of interest on the amount claimed was erroneous, corrected the amount, that he had not the power so to do, and, therefore, that the judgment must be reversed. Independent of the statute above cited, I know of nothing which would give the marine court greater power in that respect than the district courts possess. But the statute of 1853 made a great change. It gave to the marine, court powers which it had not theretofore possessed. It created a general term of the court, and authorized appeals to be taken to it from the special term, in the like manner and with the like effect as an appeal from the special to the general term of the supreme court. One effect of an appeal to the supreme court is, that that court may correct an entry in the record of its decision, and how can we say that an appeal to the marine court has had the like effect as if it were in a case in the supreme’ court, if this power be denied ? In order that the appeal to the general term of the marine 'court can be said to have the like effect as an appeal from the special term to the general term of the supreme court, it must be held that the general term of the marine court can do everything in respect to a case brought before it on appeal, which the supreme court could do under similar circumstances. Such seems to me to have been the intention of the legislature, and, therefore, I think the act must receive that construction.

It is undoubtedly true that the general term of the marine court could not grant a new trial on the ground of surprise or newly discovered evidence, or that the verdict was contrary to the weight - of evidence; but neither, in the first instance, could the supreme court; for such a motion would in-that court have to be primarily addressed to the special term. But a motion to correct the entry of the decision at the general term, or a motion for a reargument, and the like—which are motions which may be made in the general term of the supreme court—may, I think, also be made in the general term of the marine court. It is only by so holding, and giving to that court as full control over the case as the supreme court would possess in a case in the general term of that court, that full force and efficacy can be given to that branch of the statute which declares that the appeal shall be with the like effect as an appeal in the supreme court.

I think, therefore, that the court below had the power to entertain the motion to amend the order of the general term in conformity with the real state of facts, and that having done so, and presented a return to the appeal to this .court, which shows that the appeal below was dismissed for want of prosecution, there is no such final judgment as must exist before an appeal can be taken in this court.

I think the preliminary objection raised by the respondent’s counsel should be sustained, and the appeal be dismissed.  