
    Araminta Smith, Respondent, v. Hannah Smith and Others, Defendants, Impleaded with Frederick Beltz, as Substituted Trustee under the Last Will and Testament of Sarah N. Eagleton, Deceased, Appellant.
    
      Motion to amend a judgment—power of the court to grant it—objection that su motion was not made before the judge who-tried the case, not sustained — lien w premises sought to be partitioned, how asserted.
    
    A party to an action, whose motion to amend the judgment entered thereiVhas been denied, cannot, upon an appeal from the order denying the motto, be heard to say that the justice who decided the motion, not being the od who presided at the trial of the case, had no power to hear the motion. /
    A party to an action .of partition who claims a lien upon the premises must allege it in his answer and establish it by proof; the court has no power to /mend the final judgment so as to direct the referee to pay him the amount of.the alleged lien out of the proceeds of sale, as such an amendment would vary the rights of the parties as fixed by the decision of the court and the judgment entered thereon. '
    Appeal by Frederick Beltz, as substituted trustee under the last will and testament of Sarah FT. Eagleton, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the" clerk of the county of Kings on the 19th day of December, 1898, denying his motion to/amend the final judgment entered in the action by inserting a provision directing the referee to pay to him a certain sum alleged to be due him under a decree of the Surrogate’s Court.
    
      Fulton McMahon, for the appellant.
    
      C. B. Palmer, for the plaintiff, respondent.
   Woodward, J.:

This is an action in partition, resulting in a final judgment, by which provision was made for the distribution of the avails of certain real estate situate in the city of Brooklyn. The appellant is the substituted trustee under the last will and testament of Sarah FT. Eagleton, and he seeks by a motion made at Special Term to have the judgment amended by the insertion of certain clauses of the decree of the Surrogate’s Court of Flew York county. There is no doubt of the power of the court,, under the provisions of section 124 of. the Code of Civil Procedure, to amend a judgment to make it conform to the facts upon which the judgment was based ; but this is a power within the discretion of the court having jurisdiction of the question, and, in the absence of facts therein to show that there has been an abuse of this discretion or that the court has failed to exercise a discretion, there would seem to be no good reason why be order of the court should be reversed!.. The court had the decree d, the Surrogate’s Court before it; the appellant’s attorney appeared aril did not except to findings or on application for an interlocutory judgment ask anything from the court. He did not appear upon applyation for a final judgment, and, under the circumstances of ..this o.ge,.we are unable to say tliat'the court below failed of a proper exercisv of its discretion in refusing to amend the judgment in the manner islced for by the appellant.

It is uzged, however, on behalf of the appellant, on the authority of Oakley v. Cokalete (6 App. Div. 229), that, as the justice before whom-this potion was made was not the one who heard the case in the first instance, it was .not proper for him to determine, the motion. The appellant'-js not, in our opinion, in a very good position to urge this objection. '-.The motion to amend the judgment was made by the appellant; lie voluntarily submitted the question'to the discretion of the justice presiding- at the Special Term, and lie cannot now be heard to say that the matter should have been heard by the justice who conducted the trial of the ease in the first instance.

It is also to be observed that there was no power in the court to grant- the relief .asked for.. The trustee and moving party was a party to the action. His lien on the property sought to be partitioned, if any, it. was -necessary foi; him to set up by answer and establish,by proof. (Winfield v. Stacom, ante, p. 95.) The amendment asked for would vary the rights of the parties as fixed by the decision of the court mid the judgment entered thereon. This the court could not grant. (Heath v. N. Y. B. L. B. Co., 146 N. Y. 260; Fannon v. McNally, 33 App. Div. 609.)

The order appealed from should be affirmed, with costs.

All concurred,- except Bartlett, J., not- voting..

Order affirmed, with ten dollars costs and disbursements.  