
    Clarence G. T. Smith, Appellant, v. William E. T. Smith and Others, Respondents.
    Second Department,
    October 4, 1907.
    Costs — partition—court — no power to change judgment allowing costs.
    When an interlocutory judgment decreeing partition with costs to the plaintiff has been entered in conformity to the directions contained in the decision, the Special Term is without' power to amend the judgment by awarding costs to - the defendant also.
    While the court may. correct an error in the'entry of judgment, it cannot change the decision or authorize the entry of a judgment different from that directed in the decision. ' ,
    Appeal by the plaintiff, Clarence G. T. Smith, from an order of the Supreme Court", made atcthe Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 11th day of February, 1907, as resettled by an order entered in said clerk’s office on the 6th day of March, 1907, amending an interlocutory judgment in a partition action.
    
      Leonard J. Reynolds [John Lyon and Clarence G. T. Smith with him on the brief], for the appellant.,
    
      Timothy M. Griffing, for the respondents.
   Miller, J.:

This appeal involves a question of costs in a partition suit. The case was tried before the late Justice Wilmot M. Smith, who made a decision containing findings of fact and conclusions of law in which the rights of the respective parties were stated, and a judgment was directed for actual partition, with costs to the plaintiff. Upon this au interlocutory judgment was entered which provided that the plaintiff should have costs and disbursements to be taxed by the clerk. The order appealed from amends this interlocutory judgment so as to award costs to the defendants as well as the plaintiff.

Section 1022 of the Code of Civil Procedure ¡provides: In an action where the costs are in the discretion of the court the decision or report must award or deny costs, and if it awards costs it must designate the party to whom the costs to he taxed are awarded.”

The only interlocutory judgment that could be entered was the one directed by the decision. While the court would have power to correct an error in the entry of judgment it eonld not change the decision or authorize the entry of a judgment differing from the one directed by the decision.

For these reasons the order must- be reversed and the. motion denied. ‘

Hirschberg, P. J., Hooker, Gaynor and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.  