
    William O. Gennert, Individually, and William O. Gennert and Others, as Trustees for Emily G. Macks and Helen L. Gennert, Appellants, v. Butterick Publishing Company, Ltd., and Carey Printing Company, Respondents.
    First Department,
    June 18, 1909.
    Court—power to amend judgment — finding omitted toy inadvertence — costs.
    A finding of fact made by a judge after trial, although not incorporated in his • formal decision, stands as one of the findings in the case.
    The incorporation of such a finding into the formal decision upon a motion to amend and resettle the decision and judgment is. no ground for appeal.
    While a court after judgment may not alter its decision upon the merits so as to affect the substantial rights of a party, yet it may allow an amendment correcting, a mistake or supplying am omission due to an oversight of the trial judge. Where upon the trial of air equity action the judge found'that the damages sustained by the plaintiff amounted to a certain snm, and also that plaintiff had waived such'damages and the latter finding was inadvertently omitted from, the decision which awarded plaintiff, damages in "the sum fixed, the court has power on a motion to amend the judgment to strike out the conclusion of law that plaintiff was entitledr,to the damages found, for such finding was inconsistent with and resulted from overlooking the finding of fact as to plaintiff’s' waiver.
    In ah equitable action the costs are in the discretion of the. trial court, and when . that, court has once exercised its discretion by awarding them, it cannot after-wards amend its decision and judgment so as to withhold them.'
    -McLaughlin and Clarke, JJ./dissented.
    Appeal by the plaintiffs* William Ó. Gennert, individually,, and others, from a portion of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 6th day of April, 1909.
    
      Charles Blandy, for the appellants.
    
      James B. Sheehan, for the respondents.
   Scott, J.:

Appeal by plaintiffs from an order amending the decision and judgment.

The action is in equity to restain the operation of certain printing presses and for incidental damages. The justice before whom the action was tried rendered his decision in favor of plaintiffs against the defendant Carey Printing Company, and on June 30, 1908, signed' a decision containing findings of fact and conclusions of law. One of his findings of fact was that the actual damages sustained to plaintiffs’ freehold was the sum of $1,491.85. He accordingly-found as a conclusion of law that plaintiffs were entitled to a money judgment against the Carey Printing Company (in addition to injunctive relief) for the actual damages of $1,491.85 and costs. A judgment was entered accordingly.' At the same time the justice found at the request of the defendant printing company “ That on the resumption of the trial of this action (which had been suspended for certain experiments) the plaintiffs waived any right to any damages.” This finding was not incorporated into the formal decision, but, notwithstanding that fact, stands as one of the findings of fact in the case as if it had been incorporated in the decision. (Bremer v. Manhattan R. Co., 191 N. Y. 333.) Talcing the two findings of fact together the decision of the court was that while the plaintiffs had suffered damages to the extent of $1,491.85 they had waived any right to that or any damage. It is apparent that, upon these findings, the conclusion of law that the plaintiffs were entitled to a judgment for the damages found was inconsistent, and that the judgment for such damages was also inconsistent, and the only possible conclusion is that the direction for such judgment was, as the justice says in a memorandum, inadvertent, and one which resulted from overlooking the waiver and the specific finding, relating thereto. On this state of the record this court, if the'judgment had been appealed from, would have been constrained to modify the judgment by striking ou't the provision for a recoveiy of the damages. Instead of appealing the defendant printing company moved before the trial justice to amend and resettle the decision and judgment. This motion was granted and the following amendments were made : ■ (1) The finding that the plaintiffs had waived any damages was inserted in the formal decision ; (2) $he dismissal as to the defendant Butterick Company was made on the merits ” whereas originally it had been a mere dismissal without costs; (3) the conclusion of law that the plaintiffs were entitled to a money judgment for their damages, and so much of the judgment as provided for a recovery of said damages was stricken out; (4) the award of costs to plaintiffs was stricken out. The incorporation into the formal decision of the finding as to the waiver of damages, while unnecessary, did no harm and gives nó ground for-appeal. (Bremer v. Manhattan R. Co. supra.) The dismissal of the complaint'as against the Butterick Company “ on the merits ” does not appear to be seriously objected to. The real controversy in the case arises, "over1 so much of the amendment of the decision and decree as deprives plaintiffs of their judgment for damages. The rule is very well settled that while the . court, after judgment,-may not alter it's decision, upon the merits, so as to affect the substantial rights of a party, yét it has a general and incidental "power to' grant an. amendment which is in the line of correcting a mistake, or of supplying any omission obviously due to 'an ovérsight by the trial judge. (Bolden v. M. E. R. Co., 121 N. Y. 546.) A case somewhat similar to the present case is Morrison v. M. E. R. Co. (60 App.-Div. 180) in. which the trial justice .had inadvertently awarded fee and réiital damages for the premises described in the complaint.” . The premises as thus described included a lot off the line of the street ■ through which" the railway ran, and as to this' lot the 'plaintiff’s counsel upon the trial had disclaimed any-light to recover damages. The trial justice had. intended to award damages only as to the lots upon the street affected by the railway, although his decision, literally read, included the premises off that street. Upon his attention being called to this obvious oversight he corrected it by amending the decision and judgment by inserting the words “ known as Nos. 719 and 721 Sixth Avenue,” in place "of the words “ described in the complaint,” whenever they occurred. The order making this amendment was affirmed. • In Starbuck v. Starbuck (62 App. Div. 437) an order was affirmed amending a decision by striking out findings which had been inadvertently inserted which were based upon evidence which had- been rejected. The conclusions of law and the judgment must find'their basis in the facts, and when the facts as found absolutely preclude the recovery of a money judgment, an inadvertent direction for such a, judgment may properly be eliminated by amendment. This is not a case wherein the justice has reconsidered either his findings of fact Or his conclusion as to the la w applicable thereto. If it - were, the record could not be amended by him after judgment. It is simply a case of obvious and inadvertent oversight., The amendment affects no substantial right of plaintiffs because after a waiver of damages they had no right to a judgment therefor. On the record before us we must accept as true the finding relative to the waiver. In the respects indicated, therefore, we think that the order was justified and should be affirmed. The order was erroneous, however, in so far as it struck out the award of costs to the plaintiffs as against the Carey Printing-Company. In an equitable action the costs are within the discretion of the trial court, and when that court has once exercised its discretion by awarding costs it cannot afterwards amend its decision and judgment by withholding them. (Kiernan v. Agricultural Ins. Co.,3 App. Div. 26.)

The order appealed from must, therefore, be reversed in so far as it amends the decision and judgment by striking out the award of costs to plaintiffs, and otherwise affirmed, without costs in this court to either party.

Ingraham and Laughlin, JJ., concurred; McLaughlin and Clarke, JJ., dissented.

Order reversed to the extent stated in opinion,- otherwise affirmed, without Costs. Settle order on notice.  