
    The New York Ice Company v. The North Western Insurance Company of Oswego.
    No appeal lies to this court from an order of the Supreme Court at general term reversihg an order at special term, by which a judgment dismissing the complaint without prejudice to the plaintiff’s right to bring a new action, was so amended as to permit him to file an amended complaint in the original action.
    
      It seems, that such an order is a'matter of discretion, from which no appeal . . lies to the Supreme Court at general term.
    Where the complaint was framed in a double aspect, praying damages upon the breach of a written contract, and also a reformation of the contract if necessary, upon the allegation of mistake, the court should retain the action and give such relief as the plaintiff, independent of any reformation of the contract may entitle himself to, although he may, upon a trial, fail to show himself entitled to equitable relief in the reforming of the contract.
    So long as a judgment is subject to appeal, and perhaps afterwards, it is, it seems, subject to such correction and modifications, as the court, by which it was pronounced, may see fit to make.
    Appeal from the Supreme Court. The action was brought on a policy of insurance against loss by fire. The complaint averred a claim on the policy for the loss, and it also averred facts from which'it was claimed that an error had occurred in making out the policy. It demanded judgment for the amount of the loss; and, in case it should be necessary to the recovery that the policy should be reformed and corrected, for a further judgment as might be necessary. The case was brought to trial, at special term, before Mr. Justice Ingraham without jury, as an equity case. He was of opinion that the mistake, if any, was not in the written, instrument, but in a misunderstanding of the parties, by which there was a want of concurrence of minds upon the conditions of the contract; and this he held did not present a case for relief. The plaintiff then asked to have a further trial as to their right to recover upon the policy of insurance, as it actually stood without reformation. The judge held this inadmissible, on the ground that he had no authority to try the right of the plaintiff under the policy, without a jury, nor to send the case to a jury for a second trial. He conceded that had the right to equitable relief been established, it would have been his duty to have proceeded and done complete justice; but regarding the action as purely an equitable one, held that a claim for mere legal relief could not be united. He therefore dismissed the complaint without prejudice to the right of the plaintiff to bring a new action upon the policy. The plaintiff having discovered that the time for bringing an action was limited by the terms of the policy and had expired,- made an application at special term, and the judgment was so amended as to permit him to “ serve a new complaint at law.” On appeal, the order allowing this amendment was reversed, at general term in the first district, on the ground that the authority of the court to amend a judgment (without a rehearing of the case) extended only to mistakes or omission, and did.' not reach a case where the judgment was precisely what it was intended to be, and disposed of the whole case. The plaintiff appealed to this court, and the defendant moved to dismiss the appeal.
    
      William Curtis Noyes, for the motion.
    
      Mr. Sherman, opposed.
   Comstock, Ch. J.

The object of the suit was to recover the sum of $4,000, in which the defendants, by a fire policy, insured the plaintiffs. In the complaint it was stated that a certain clause in the policy descriptive of the subject of insurance was inserted by mistake, and that the defendants taking advantage of that clause had refused to pay the loss. The prayer of the complaint was for the recovery of the $4,000; and, if necessary, that the contract be reformed by striking out the clause in question. The case was tried before Mr. Justice Ingraham, who dismissed the complaint. The decision proceeded solely on the ground that the plaintiffs had not made out a right to have the contract reformed; but no determination was made that the plaintiffs were not entitled to recover on the policy as it actually was. The learned Justice was of the opinion that such a recovery could not be had without instituting a new suit, and the judgment was accordingly'without prejudice to the right of bringing another action. But the plaintiffs afterwards ascertained that, by a provision in the policy,, actions must be brought within twelve months after a loss, and that it was too late to begin de novo. They then moved the special term to amend the order of dismissal, by inserting leave to file a complaint “at law” in the same action, and an order granting such leave was made. From this order the defendants appealed to the general term, where the same was reversed, and from the order of reversal the plaintiffs appealed to this court. The defendants move to dismiss this appeal.

I confess myself unable to see why the plaintiffs were not entitled to a reformation of the contract. The learned justice who tried the case, in the opinion given by him, after refering to the evidence, observes: “The only conclusion I can adopt on this evidence is that there was a mutual mistake as to the description of the premises arising from a misunderstanding of the parties in the original negotiation of the contract, and that the defendants’ agent in making the policy made it as he intended it should be when he agreed to insure the property. The policy was made according to his description entered by him in the books of the company,” &c. Eow if the misdescription of the subject of insurance was material, and was ' entered in the books of the company, and found its way into the policy in consequence of a mutual mistake or misunderstanding of the parties, it seems to me that a proper case was made out for a reformation of the contract.

In the next place, I am of opinion that it was erroneous to turn the plaintiff out of court on the mere ground that he had not entitled himself to the equitable relief demanded, if there was enough left of his case to entitle him to recover the sum in which he was insured. Eo suggestion was made that the complaint did not show a good cause of action for this money, even after striking out all the allegations and the prayer on the subject of equitable relief. But because it contained those allegations, and because those were tried without a jury and tried unsuccessfully, the court refused to entertain the case for the relief to which the plaintiff was in fact entitled, that is to say, for the recovery of the money without reforming the contract. This ruling proceeded wholly on the authority of the case of Reubens v. Joel in this court (3 Kern., 488), which it is intimated was a departure from previous cases also in this court. But this is a mistake. In that case a debtor had made, as it was alleged, a fraudulent assignment of his property; and a creditor, by simple contract, commenced a suit against the assignor and assignee praying a recovery of his debt, and for an injunction to restrain the alienation of the property assigned. The question in the case arose on demurrer, put in by the assignee, and the point determined in this court was, that such a creditor was not entitled in such a case to equitable relief by injunction. We all thought that the creditor had no standing in court, legal or equitable, as against the assignee, until after judgment against his debtor, and whatever was said beyond this is to be taken as individual opinion merely. The doctrine of the previous cases (2 Kern., 266; id., 336), favorable to uniting in the same action legal and equitable grounds of relief, was not intended to be disturbed; and a ease in this court of a later date has reaffirmed that doctrine in the most explicit manner. (Phillips v. Gorham, 17 N. Y., 270.) In this case the point was very distinctly presented, and it was decided upon the fullest consideration. I think it proper to mention that the reason why I expressed no opinion in the case was, that I hesitated in regard to the power of the legislature under the Constitution to abrogate all the distinctions between legal and equitable actions. That such was the expressed intention of the legislature in the Code of Procedure, I never had any doubt. Both of these questions must now be considered at rest.

And in the next place, I do not see the grounds upon which the court below, in general term, reversed the order of the special term, giving to the plaintiff the right to put in a new or amended complaint in the action. I think the complaint was perfectly good, and that no amendment or substitution was necessary. It was much more clearly good in the so-called legal than in the so-called equitable aspect of the case. NTever theless, the court corrected the judgment by adding the words, “ or the plaintiff may serve a new complaint at law in this action on payment,” &c. The judgment was entered December 23, 1859; notice of the motion for leave to add this clause to it was given in February following, and the order granting leave was made in July following. It is suggested in the opposing papers that the judgment had become perfect and final before the motion was made. I do not see the force of this suggestion. The judgment was perfect as soon as pronounced and entered. It would become final when the time for appealing should expire, but there is no pretence that this was ever limited by serving on the plaintiffs the notice required for that purpose. (Code, § 332.) I think the power of the court to modify or amend the judgment cannot be questioned. Even if the time for appealing had expired, I am by no means prepared to admit that this power would be lost. At all events so long as the judgment was subject to an appeal, it was subject to such corrections and modifications as the court which pronounced it might in its discretion think proper to make. The administration of justice would be extremely imperfect if this power did not exist. In this case the complaint had been dismissed at the trial, because the plaintiffs had failed (as the court thought) to prove the equitable ground of relief which he had alleged. By the modification afterwards directed, leave was given to file and serve a different;, that is to say, an amended complaint. The judgment then was no longer absolute, but it would become so unless the plaintiff, within twenty days amended his complaint, and paid the specified costs. If an amendment was thought necessary this would have been extremely proper as an original disposition of the case at the trial. As the time for bringing a new suit had expired, justice plainly required that the case should be put in this situation; and as it was not so done at the trial, it was just that the omission should be supplied afterwards.

In the next place, I am of opinion that the Supreme Court had no right to entertain the appeal at all from the order of the special term. That order, in its substance and nature, simply allowed a pleading to be amended in furtherance of the justice of the case. Such orders rest in the discretion of the court which makes them, they involve no substantial right and they are not reviewable on appeal. They do not belong to either class of orders which, according to the Code, may be reexamined at the general term. (Code, § 349.) As incidental to the amendment applied for in this case, it was necessary to modify the judgment in its absolute character. But this was only a part of the discretion to be exercised on the application. Hot even in this view was any substantial right involved, because it was merely a question of practice whether the legal merits of the case should be tried under an amendment of the pleading or in a new action. Leave to bring a new action had been originally given. The amendment simply gave leave, in the plaintiff’s election, to go on in the same action after reform ing his complaint. In all this I see nothing but practice and descretion which afforded no ground for a review.

But the inquiry remains whether the order of reversal, pronounced at the general term, can be reviewed in this court. We regret to find that there is no provision of law which authorizes such an appeal. The order appealed from does not, we think, “in effect determine the action and prevent a judgment from which an appeal might be taken.” (Code, § 11, sub. 2.) On the contrary, it leaves in force a judgment in the action rendered upon the trial, from which an appeal might be taken, and, so far as we know, may still be taken. The case, therefore, does not seem to be embraced in any of the subdivisions of the 11th section of the Code, which is the only authority for appeals to this court. The appeal must therefore be dismissed, but without costs.

Appeal dismissed.  