
    Emanuel J. Myers and Others, Appellants, v. Bernhard Lederer and Others, Defendants, Impleaded with Harris Seff and Isidor Lauterstein, Respondents.
    First Department,
    May 10, 1907.
    ■Practice —misjoinder of actions may be cured by-amendment of com•'plaint—court below without power to modify order of Appellate ' ' Division.
    Although a plaintiff is ordered to sever -actions improperly joined he may, pursuant to leave to amend the.complaint, redraw his.pleading, so as to embrace the .separate causes of action in a single action against all the déffendantsi' He is not required, to sever if the defect can be cured by 'amendment.,
    "When the Appellate Division has modified an interlocutory judgment, the entry .thereof in the court below "for -the purpose of taxing costs is a mere formality ' and there is no authority in the. attorneys for-either party or in the county clerk to change or modify the order-of .the Appellate Division.
    When an interlocutory judgment requiring the severance of .actions has been modified by the Appellate Division by granting leave to amend, the right to amend is effective without further action on the part of the clerk of the court ■below. "
    
      Appeal by the plaintiffs, Emanuel J. Myers and others, from an order of the Supreme Court, made at the Yew York. Special Term and entered in the office of the clerk of the county of Yew York on the 19th day of March, 1907, denying the plaintiffs’ motion to compel the defendants, Harris Seff and Isidor Lauterstein to accept a second amended complaint served herein, which was returned upon the alleged ground that it did not conform to the requirements of the interlocutory judgment and the judgment of this court, which affirmed the interlocutory judgment and granted leave to serve an amended complaint.
    
      Morgan J. O'Brien, for the appellants'.
    
      Leon Lauterstein, for the respondents.
   Laughlin, J.:

The defendants Seff and Lauterstein demurred to the amended complaint herein, upon the- ground that it appeared, upon the face thereof that several causes of action had been improperly united. The court at Special Term sustained the demurrer, and the decision directed the entry of an interlocutory judgment requiring the plaintiffs to sever the action into four separate actions, the defendants in each respectively to be the parties named in the 5th, 6th, 7th and 8th paragraphs of the complaint respectively, with leave to the plaintiffs to serve a complaint in one of such separate actions against the defendants Harris- Seff and Isidor Lauterstein,” and providing that in the event of their failure to “ serve an amended complaint in such separate action’’ against said defendants, final judgment might be entered,- dismissing, the complaint as against, them. An interlocutory judgment was entered in accordance with, the decision. Upon appeal to this court, the decision of the Special Term was sustained. In the opinion of this court, however, it was-pointed out' that although the severance of the action was authorized by section 497 of the Code of Civil Procedure, nevertheless, the plaintiffs, being desirous of serving an amended complaint, should be granted that leave (117 App. Div. 27); and- the order of this court entered pursuant to the opinion,-affirmed the interlocutory judgment “with leave to the plaintiffs to amend the amended complaint within twenty days from the service of this order,” on payment-of costs. ■

The plaintiffs availed themselves of this leave and duly tendered. ■ the costs and a. second amended complaint in and by which they alleged a single cause of action .against all of the defendants, embracing therein all of the causes of action included in the former complaint, without severing the action as directed by the interlocutory, judgment. Assuming the facts set forth in the last amended complaint to be true, it now appears that there is but a single cause of • action upon which all of the defendants are liable, but as the facts were previously alleged, it was decided that four sets of the defendants were severally liable for part only of the entire claim. It is manifest that the plaintiffs were acting within their strict legal rights ■in thus amending their complaint. The certified copy of the order of this court,.filed with a copy of the papers on appeal in the office of the county clerk pursuant to the requirements of section 1355 óf tlie Code of Civil Procedure, followed the order of this court and authorized the service of the amended complaint, but in- entering the judgment of affirmance in the office of the county clerk upon said certified copy of the order of this court, the order was not followed and an unauthorized clause was inserted, limiting the plain- - , tiffs in amending their complaint, to amending it as directed in said • interlocutory judgment.” The judgment purports to have ■ .been entered on the' motion of the attorney for the respondents, Seff and Lauterstein. Said section 1355 of the Code of Civil Procedure provides, with respect to the entry of the judgment in the ' office of the county clerk,'after the certified copy of the order and the . original record on the appeal have been filed in his office, that upon such certified copy of the order and the. case or papers upon which the-appeal was heard, the county clerk shall enter the judgment in his office.” It is the practice for the attorney for the successful party to prepare a formal judgment in accordance with the certified copy of the order of the Appellate 'Division deciding ' the appeal and to file the same with the county clerk to be annexed to the judgment roll to which the certified copy order of the Appellate Division and original record on appeal have been, annexed and docketed, and doubtless this practice is contemplated and authorized, by the provisions of said section of the Code of Civil Procedure, because it is essential in most cases to have the costs allowed by this court taxed by the county clerk, and as the bill of costs does mot constitute part of a judgment roll, in the absence of a formal judgment there would be no method of' having the costs as taxed specified in the judgment roll. (Code Civ. Proc. §§ 3262, 1237, 1354.) It is manifest, however, that the entry of the judgment is, so far as carrying into effect the provisions of the order of this court, with the exception of the allowance of costs which are required to be taxed, a mere formal matter, and there is no authority vested in the attorneys for either party, or in the county clerk, to change •or modify the phraseology of the order which .is the decision of this ■court. The entry of such a formal judgment is quite unlike the ■entry of a judgment , which is authorized by a decision of the court •on the trial of the issues without a jury. The Code of Civil Procedure provides that the decision of the court or referee on the trial of issues without a jury must direct the judgment to be entered (Code Civ. Proc. § 1022), but there is no such requirement with respect to the decision on an appeal to the Appellate Division. Our orders do not expressly require that a judgment shall be entered, nor does the Code prescribe that they should. The provision of the order of this court, granting leave to the plaintiffs to serve an amended complaint,- became effective without' further action on'the part of a ministerial officer. The unauthorized provision in the judgment must, therefore, be regarded as surplusage, and it was not essential that a motion should have been made to strike it out before the plaiptiffs became entitled to the benefit of the order of this court.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Patterson, P. J., Claeke and Scott, JJ., concurred.

Ingraham, J.

(concurring):

The permission granted by this court in the order affirming the interlocutory judgment allowing the plaintiffs to serve an amended complaint was in addition and supplemental to the permission awarded by the interlocutory judgment. The right given to the plaintiffs did not depend upon the interlocutory judgment or any action of the court below or the clerk of that court. When, therefore, in pursuance of the authority given by this court the plaintiffs served an amended complaint, the defendants were bound to accept it and the ■ court below bound to enforce the order of this court granting such leave. There is certainly nó provision of the Gode of' Civil Procedure which authorizes the clerk of the Supreme Court,, of his own motion, to deny to a party a leave or privilege which this court has granted to him.

' I, therefqre, concur in the reversal'of the order and the granting-of the motion. ' '

Order reversed, with ten dollars costs and disburséments, and motion granted, with ten dollars costs'.  