
    Isabella B. Clute, respondent, v. Jacob Knies and another, survivors, etc.
    
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    Ejectment—Undertaking in—Binding until final judgment reached —Mistake in—Court may amend, where mutual.
    By a mutual mistake, defendants, in an action of ejectment, gave an -undertaking, that the plaintiff would account for and pay over the rent of the premises “as the court may direct in the above entitled action.” After the complaint had been dismissed on two several trials, and the judgment in each instance reversed by the general term, the undertaking, on the third trial, was corrected on motion, and judgment given that tfie undertaking be amended, and for the rental value of the premises. Held, no error; that the undertaking was valid and binding until a final judgment was reached, and that the court had the power to amend as stated.
    Appeal from general term supreme court, first department, affirming judgment for plaintiff in action in ejectment.
    
      William G. McCrea, for appellants, Jacob Knies and another, survivors, etc.
    
      T. J. Clute, for respondent, Isabella B. Clute.
    
      
       See 99 N. Y. 343.
    
   Earl, J.

In 1874 the plaintiff commenced an action of ejectment against the defendant Emmerich, and afterwards made an application for the appointment of a receiver of the rents of the land claimed, pending the action. Thereupon, to avoid the appointment of a receiver, Emmerich consented to the entry of the following order on the 2d day of May, 1874:

“A motion having been made herein for an order appointing a receiver of the rents of the premises described in the complaint during the pendency of the action, the defendant objecting thereto, but consenting that an order be made and entered herein in lieu thereof directing him to tile security for the payment of said rent in case the court should so order and direct herein, now, on reading and filing such consent, ordered that said defendant file security in the penalty of $3,000, with two sufficient sureties, conditioned that said plaintiff will account for and pay over the rent of said premises as the court may direct by order in the above-entitled action.”

In pursuance of that order, Emmerich, with the defendant Ernies and one Fisher, executed an undertaking, of which the following is a copy:

“ An order having been made herein, by consent, that the defendant file se curity with the clerk of this court in the penalty of $3,000, conditioned that plaintiff will account for and pay over, under the direction of the court, the rents of the premises described in the complaint, we, Adam Emmerich, of No. 337 West 40th street, in the city of New York, Anthony Fisher, of No. 437 West 43d street, in said city, and Jacob Knies, of No. 450 West 45th street, in said city, do undertake, pursuant to said order, in the sum of $3,000, that said plaintiff will account for and pay over the rent of said premises in case the court so directs, according to any order that may be made herein, not exceeding the sum above mentioned.”

That action was thereafter tried, and a judgment rendered in favor of Emmerich, dismissing the complaint. From that judgment an appeal was taken by the plaintiff to the general term, and there the judgment was reversed, and a new trial was ordered. A second trial was had, and the defendant was again successful, and the plaintiff again appealed to the general term, and the judgment against her was reversed, and a new trial ordered. Previous to the third, trial, upon the motion of the plaintiff, an order was entered directing that the former order of May 2, 1814, be amended nunc pro tune by striking out the word ‘ ‘ plaintiff ” where it appeared therein, and substituting the word “ defendant ” instead thereof, so that the order should read as follows:

“Now, on reading and filing such consent, ordered that said defendant file security in the penalty of $3,000, with sufficient surety, conditioned that said defendant will account for and pay over the rent of said premises as the court may direct by order in the above entitled action.”

Thereafter the third trial took place, and resulted in a judgment in favor of the plaintiff' for the possession of the premises claimed, and for the sum of $2,562.12 as the rental value of the premises from October 21, 1811, to May 6, 1881, at the rate of $900 per year, after deducting certain payments and allowances made by the court to the defendant. In the mean time Fisher, one of the obligors in the undertaking dated May 2, 1814, had died. This action was commenced against the two survivors, the defendants, Emmerich and Ernies, to reform that undertaking by striking out the word “plaintiff ” where it occurs therein, and inserting the word “ defendant,” so that the undertaking would bind the obligors that the defendant Emmerich would account for and pay over the rent of the premises in question in case the» court should so direct, according to any order that might be made by the court, not exceeding the sum mentioned in the undertaking, on the ground that the word “plaintiff ” was inserted in the bond by mutual mistake, instead of the word “ defendant;” and judgment was also demanded upon the undertaking as thus corrected for the sum of $3,000, with interest. The court ordered judgment for the plaintiff correcting the bond as prayed for, and for the sum due to the plaintiff for the rental value of the property. The defendants appealed from that judgment to the general term, and from affirmance there to this court.

The first claim the appellants make is that the undertaking was merged in and superseded by the first judgment which was rendered dismissing the complaint. It is true that, if that judgment had never been disturbed, it would have been final, and would have absolved the obligors in the undertaking from any liability. But it was subsequently reversed, and finally in the action a judgment was rendered in favor of the plaintiff, and then the undertaking by its terms became operative. This was not a statutory but a common-law undertaking, founded upon a sufficient consideration. There was a final judgment in the action which directed the defendant Emmerich to pay the plaintiff certain rents, and that judgment was a direction and order of the court, within the meaning of the undertaking. It is quite true that the dismissal of the complaint dissolves an injunction, and vacates and annuls an order of arrest; but there is no analogy between such cases and the case now before us. The undertaking bomid Emmerich to account for and pay over the rent of the premises as the court might direct, by any order or judgment which might be obtained in the action, and, when a final judgment was obtained directing such payment, the condition had arisen when rendered the obligors hable upon the undertaking.

Ho point was made uj>on the trial, or by any exception, that the amount awarded to the plaintiff in this action was too large. In the action against Emmerich it was found that the rental value of the property from October 21,1771, to January 21, 1881, was $900 per year, and after making certain deductions a judgment was rendered against Emmerich for $2,561.78, and that was the amount of the recovery in this action. It is objected that the defendants are not hable for the rental value, but simply for the íents actually collected. Ho such point was taken at the trial, and it does not appear that Emmerich did not collect the full amount awarded against the defendants. In the absence of any proof, it may be assumed that he received rents equal to the full rental value. The undertaking was-dated May 2, 1874, and the final judgment in the action was rendered seven years thereafter; and, as the rental value appears to have been $900 per year, it cannot be said that the amount of the judgment is too large. It is a fair inference from the evidence that the balance of rents due-from the defendant between the dates named was fully equal to the amount of the recovery.

It is also claimed that the court had no authority to-amend the undertaking. It was simply a common-law instrument between the plaintiff and Emmerich, and his two-sureties. The evidence is ample and conclusive that, by mutual mistake of the parties, the word “plaintiff” was-inserted where the word “defendant” should have been, and upon the proof there was ample power in the court to order the undertaking to be amended, and enforced as amended, and thus make the instrument conform to what-all the parties intended and expected.

It matters not that the order of May 2, 1874, was-amended without notice to the sureties in the undertaking. It was wholly unnecessary to amend that order, and the amendment was harmless, as this action could have been maintained without such amendment. Yor does it matter that in the amended order Emmerich was required to file a new undertaking in conformity therewith. ' The new undertaking was not filed, and the former was not, therefore, susperseded.

We discover no error in the judgment, and it should be affirmed, with costs.

All concur.  