
    AUGUSTA G. GENET, Appellant v. THE PRESIDENT, ETC., OF THE DELAWARE AND HUDSON CANAL COMPANY, Respondent.
    
      Court of Appeals—Remittitur—Entry of judgment in regard to costs— Restitution under the Code, powers of the court below to order the same.
    
    This is an appeal from an order made at special term by Judge Gildbbsleeve granting a motion made by defendant to vacate an order heretofore made in the action setting off costs, and amending the judgment so as to make it include the costs to which defendant was originally entitled, hut which were extinguished by the set-off. The complaint stated two causes of action. Upon the trial defendant prevailed upon the first cause of action, and plaintiff upon the second. Each party thus became entitled to costs as against the other. Defendant moved for an order directing that the costs of each party when taxed by the clerk to set off one against the other, and the balance only included in the judgment. This motion was granted by Judge Fbeedmatt, and an order entered February 15, 1887, and it is this order which the order now appealed from has set aside. The costs of each party were taxed in pursuance of Judge Fbeedmait’s order, those of plaintiff at $618.67, and those of defendant at $570.44, and judgment entered in favor of plaintiff for the balance of costs in her favor, $48.23. Both parties appealed from the judgment to the general term, which affirmed it, and both parties then appealed to the Court of Appeals, which court affirmed so much of the judgment as was appealed from by plaintiff and reversed those parts appealed from by defendant, and dismissed the entire complaint with costs. The remittitur was filed, and the judgment of the Court of Appeals made the judgment of this court February 15, 1892. Defendant presented a bill of costs to the clerk for taxation, including in it the amount of the costs of the trial as originally taxed in.February, 1887, and the entire costs of the action, which were allowed by the clerk. Plaintiff appealed against such taxation and Judge MoAdam reversed it, holding that the costs awarded by the Court of Appeals were the costs in that court only, in the following opinion : “ MoAdam, J.—The complaint states two causes of action. One at law to recover $150,000 damages for breach of contract, the other in equity for an injunction and incidental damages. The referee dismissed the first cause of action, but awarded plaintiff judgment on the second. The plaintiff thereupon taxed her costs at $618.67, and the defendant its costs at $570.44. Set-off was allowed and the plaintiff in consequence entered judgment in her favor for the equitable relief, with $48.23, costs (the difference), and the defendant for the dismissal of the first count, without costs (the set-off having absorbed them). Both sides appealed ; the judgment on the first count was affirmed by the general term, and the second count (modified in form) was also affirmed thereat 1 without costs to either party.’ Both sides again appealed, this time to the Court of Appeals, which court expressed its judgment in these words : 1 That said judgment so far as appealed from by the plaintiff be affirmed, and that said judgment, so far as appealed from by the defendant be reversed, and the complaint dismissed with costs.’ The clerk on application of the defendant taxed defendant’s costs in all the courts. This was error. He should have taxed the costs to the Court of Appeals only. In re Water Commissioners, 104 N. Y., 677; Franey v. Smith, 126 27)., 658. The taxation must therefore be reversed, but with liberty to the defendant to move by way of restitution to vacate the order for set-off and for leave to amend the original judgment roll nunc pro tunc by inserting therein in suitable language the costs originally taxed on the dismissal of the first cause of action, to the end that the defendant may not be deprived of them. These belong to the defendant as of right, not by the courtesy of the court but by force of the statute. The judgment made by the Court of Appeals eliminated not only the plaintiff’s recovery but the costs allowed to her which were made the subject of set-off. The new condition, final in its character, seems to warrant restitution to the defendant in furtherance of justice and to prevent abuse. The control which every court has over its own judgments would seem to sustain the power.”
    The order now appealed from was moved for in accordance with the suggestions contained in the above opinion, and, on granting the motion, Judge Gildebsleeve filed this memorandum : “ The question presented on this motion has been passed upon by my learned associate, Judge Mo Ad am; motion granted without costs; order to be settled in accordance with Judge McAdam’s opinion.”
    
      Held, That the court at special term had power to order restitution, and the order should be affirmed.
    Before Freedman P. J, and Dugro, J.
    
      Decided July 5, 1892.
    
      George C. Genet, attorney and of counsel, for appellant, argued:—
    I. The judge who ordered the adjustment of the costs by the clerk, set aside, suggested that defendant might recover the costs it had disposed of in a different way before judgment, under the sections of the Code relating to restitution. The defendant thereupon made the motion which has been granted in deference to that opinion. Prior to these sections of the Code, 1323, 1292, restitution could only be had by action. These sections give the court that renders the final judgment this power in connection with the judgment rendered. They do not change or extend the right. Section 1323 provides, “ When a final judgment or order is reversed or modified upon appeal the appellate court or the general term of the same court, as the case may be, may make or compel restitution of property or of a right lost by means of the erroneous judgment.” The Court of Appeals having rendered the final judgment, the power to order restitution was in that court alone. Murray v. Bedell, 90 N. Y., 480; Market Nat. Bank v. Pacific Bank, 102 Ib., 464. Section 1292 applies to cases where the final judgment is rendered by the court of original jurisdiction, where an appeal has been taken and the judgment reversed and a new trial had, with a result the reverse of the first trial.
    II. It is not within the power or jurisdiction of the court of original jurisdiction to alter, vary, reverse or modify a judgment that has been affirmed or finally adjudicated and judgment rendered by the appellate court. Genet v. Del. Hud. Canal Co., 113 N. Y., 475 ; Fisher v. Repburn, 48 Ib., 41, 53 ; Embury v. Connor, 3 Com., 231; Le Guen v. Gouverneur, 1 John. Cases, 492 ; Wilcox v. Jackson, 13 U. S. R., 511; People v. Sturtevant, 9 N. Y., 275; Smith Lead. Cases, Title Estoppel; Merwin v. Brewster Iron Co., 56 N. Y., 671. The judgment entered on the return of the remittitur where the Court of Appeals renders a final judgment is the judgment of that court, and not of this court, although it is entered by the clerk of this court on the order of one of its judges. It is made the judgment of this court for the sole purpose of enforcing it. Wilkins v. Earle, 63 N. Y., 358 ; Kennedy v. O’Brien, 2 E. D. Smith, 41. The order from which the appeal is taken not only renders an entirely new and different judgment, but goes further back still and vacates an order disposing of these same costs on defendant’s own motion before the judgment was entered. This was in effect a payment of them by plaintiff and actually prevented them from ever being any part of the judgment appealed from.
    III. The defendant now seeks relief under the sections relating to restitution and to reach it, asks to set aside an order made on its own motion and to vacate, change, alter and render an entirely new judgment, and it has been -ordered. The plaintiff has never been paid any of these sums by defendant. It is absurd to claim restoration of what has never been received. It would be a misuse of language. It is only where money has been paid that it can be claimed to be restored. See old Code 3369.
    
      IV. Should the court surmount all these obstacles and conclude that the case comes within its power to order restitution, the plaintiff offers the following objections : (1) That the motion is not for restoration but to cancel and vacate a final judgment and to order the clerk to enter an entirely different one. (2) That except as to the $125 costs, the defendant could not now tax the bill of costs against her that was taxed in 1887.
    
      Matthews & Smith, attorneys, and Frank E. Smith of counsel, for respondent, argued:—
    I. The set-off of costs was properly vacated. This order was correct when it was made, but the costs of plaintiff which were in effect paid by it, having now been extinguished by the reversal, it now works an injustice which can be corrected only by setting it aside. The fact that the order was made on motion of defendant is no objection to vacating the same now on its motion. Hatch v. Central Nat. Bank, 78 N. Y., 487; Montgomery v. Ellis, 6 How., 326.
    II. The court has power to amend its own records, even after its judgment has been passed upon by the Court of Appeals. In Corn Exchange Bank v. Blye, 119 N. Y., 414, Ruger, J., says: “ This appeal presents the question whether the court has authority to vacate and annul so much of a judgment in replevin as provided for the payment of damages for the detention of the property, in addition to its return, after four years from the entry of the judgment, and the same had been affirmed in the court of last resort. * * * * It is urged on this appeal by the plaintiff, that the court below had no power to vacate or modify the judgment actually entered, after it had been affirmed by the appellate court. This contention rests upon the question whether the error in entering the judgment raised a question which could be availed of by the defendant on appeal; if it could then, obviously, the court below could not afterwards change the substantial character of the judgment affirmed. We think the decisions are uniformly to the effect that when an error has been made in respect to the form of a judgment by which its scope or amount has been enlarged or increased beyond that plainly authorized by a verdict, referee’s report or decision of a court, a question is not presented for the consideration of the court of appeal, but the error must be corrected, if at all, by motion in the court of original jurisdiction.” The change in the judgment made by the order appealed from does not relate to the substance, but merely the form. It is not asked for on the ground that anything originally done was incorrect, erroneous, or even irregular, but solely on the ground that the reversal of part of the judgment by the Court of Appeals leaves the portion of it, which was affirmed in such shape as to work injustice to defendant, by not including in it the costs, to which defendant is entitled, and which in legal effect were awarded to it by the original judgment.
    III. Every court has inherent power over its own orders and judgments and can modify them as justice requires. The existence of this power is well established, though its precise limits may be hard to define. That the extent to which the power was carried by the present order comes well within the limit may be best shown by reference to decided cases. Genet v. D. &. H. Canal Co., 113 N. Y., 472; Hatch v. Central Nat. Bank, 78 Ib., 487; New York Ice Company v. North-Western Ins. Co., 23 Ib., 357; Toronto Trust Co. v. C. B. & Q. R. R., 123 Ib., 37; Produce Bank v. Morton, 67 Ib., 199; Ladd v. Stevenson, 112 Ib., 325 ; Gasz v. Strick, 30 St. Rep., 226; Adams v. Ash, 46 Hun, 105 ; Van Denburgh v. The Mayor, 28 St. Rep., 578.
    IV. The amendment made is hut a form of restitution. The judgment in plaintiff’s favor was used to extinguish the costs for which otherwise defendant would have had judgment. Being now out of the way by reversal, defendant should be put in the position to which it would have been but for the erroneous judgment ; that is, with judgment in its favor for the costs as taxed. ' The power of the court to make restitution does not depend upon statutes, but exists at common law. Hæbler v. Meyers, 44 St. Rep., 403.
   Per Curiam.

The court at special term had power to order restitution (Wright v. Nostrand, 100 N. Y., 616; Carleton v. The Mayor, 19 Weekly Digest, 354), and as the method adopted to enforce it carried out the necessary effect of the judgment of the Court of Appeals and rendered it effectual, there is no necessity for condemning it by a reversal.

The order should be affirmed, with ten dollars costs, etc.  