
    Albert Meldon, Plaintiff, v. Angela M. Devlin and Others, Appellants, and Peter W. Felix, Despondent.
    
      Judgment — an amendment thereof, at Special Term, after its affirmance on appeal, is improper—effect of an action to settle an estate, on a contract to sell real property.
    
    One Felix, to whom Jeremiah Devlin, the surviving trustee under the will of Daniel Devlin, had contracted to sell certain lands, brought an action against the appointees under the will of Jeremiah Devlin to compel a specific performance of the contract, and to obtain compensation for certain defects in the title. Pending the trial of the action, an action was brought to settle the affairs of the estate of Daniel Devlin, and to determine the rights of the parties under his will. To this action Felix procured himself to be made a party, and appeared therein for the purpose of preserving his rights under the contract, and not for the purpose of obtaining any adjudication relative to his rights in the action for specific performance. The action resulted in a judgment adjudging that the premises contracted to be sold to Felix were subject to his rights as a bona fide purchaser, and that the contract price should stand in place of the land, but it contained no further adjudication in regard thereto.
    Upon an appeal to the Appellate Division, the judgment was modified in certain matters not relating to those here in question, and was affirmed as modified.
    On the trial of the action brought by Felix for specific performance, the court ruled that Felix’s right to a deduction from the contract price for defects in the title was presented to the court in the action relating to the will of Daniel Devlin, and decided that the failure of the judgment entered in that action to allow such deduction was conclusive against Felix’s right thereto.
    Felix then obtained an order at Special Term amending the judgment entered in the action relating to the will of Daniel Devlin by inserting a provision that the adjudication was made without prejudice to his claims in the action for ■ specific performance, and especially reserving from the effect of that adjudication his right to a deduction from the contract price.
    
      Held, that the court at Special Term had no power, after the affirmance of the judgment at the Appellate Division, to allow the amendment thereto.
    
      Semble, that the action relating to the will of Daniel Devlin did not involve the question whether Felix was entitled to a deduction from the purchase price,1 and that the amendment was, therefore, unnecessary.
    Appeal by the defendants, Angela M. Devlin and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of February, 1899, amending the judgment heretofore entered in the above-entitled action by adding thereto the following provision : “ 45-¡¿-. And it is further adjudged and decreed that the decision and judgment herein, so far as they relate to the premises described in Schedule M, hereinbefore recited, are made and rendered without prejudice to the claims set forth in the amended and supplemental complaint in the action pending in this court in which the defendant Peter W. Felix is the plaintiff, and the defendant Daniel C. Devlin and other defendants in this action are the defendants, to wit, that by reason of certain alleged defects in the title of the premises therein described, the said defendant Felix is entitled to certain abatements from the purchase money for which he purchased said premises, and to a specific performance of the contract of sale with such abatements in the purchase price ; no adjudication being made or intended in this action in respect to the validity of said claims, or any of them, or (in case any of said claims should be determined to be valid) in respect to the amount to be paid by said Felix to entitle him to a conveyance of said premises, or of such parts thereof as his vendor, or the successors in interest of said vendor, are or may be able to convey, or in respect to the parts or proportion of the premises so purchased by said Felix to which said vendor or his successors in interest had or have a valid and unincumbered title or which they were or are able to convey to said Felix.”
    
      Charles M. Demond and Charles R. Pelgram, for the appellants.
    
      Louis O. Van Doren, for the respondent.
   Rumsey, J. :

In the year 1893 Peter W. Felix, the respondent here, made a contract with Jeremiah Devlin, the surviving trustee under the will ■of Daniel Devlin, to purchase certain property to which Jeremiah Devlin had title, and paid down a certain portion of the purchase price. Some controversy arose between the parties as to the title to the premises, during which Jeremiah Devlin died. It being impossible to settle the controversy amicably, Felix brought an action against the appellants here as appointees of Jeremiah Devlin under a power given to him by the will,- to compel a specific performance of the contract, with compensation for certain defects in the title to a portion of the premises. Issue was joined in that action, and it was ready for trial. Before it was tried, however, this action was brought, having for its object the settlement of the affairs of the estate of Daniel Devlin and the determination of the rights of the parties claiming under his will. In this action Felix procured himself to he made a party defendant, and set up the fact that he was a bona fide purchaser for value of a certain portion of the premises, the title to which was involved in the action. His appearance in the action was simply for the purpose of preserving ■any rights he might have under his contract of purchase, and not for the purpose of asking for any adjudication in regard to Lis rights, as between himself and the defendants in the action which he had brought for a specific performance. Judgment was entered in this action before the trial of the action which Felix had brought for a specific performance, and that judgment adjudicated upon the rights of those claiming under the will of Daniel Devlin. It was ■also determined in the judgment that the premises which had been bid off by Felix were subject to his right as a bona fide purchaser ■of them, and that the amount paid by him and that what he was to ¡Day under his contract should stand in the place of the land. The judgment then gave directions as to the way iii which that amount should be disposed of between the parties to the action other than Felix, but it contained no further adjudication in regard to the rights of Felix to the premises which he had bought, and as to which his action against the appellants here was pending for a specific performance. An appeal was taken from that judgment to this court, which resulted in a determination modifying the judgment in regard to some matters not necessary to be considered here, and affirming it as thus modified. After that had taken place, the action of Felix against these appellants for the specific performance of his contract came on to be tried. In that action Felix claimed that he was entitled to a specific performance. of the contract, but with a deduction of a portion of the purchase price because of a. deficiency in the amount of land agreed to be sold to him, and because of certain defects in the title. The learned justice before-whom the case was tried held that the question whether Felix was-entitled to a deduction from the purchase price by reason of these facts, ivas presented to the court in this action, and might have been determined, and that the adjudication in that regard, which did not allow him any such deduction, was a substantial adjudication against, his contention in that suit, and for that reason it dismissed his com-. plaint asking for a specific performance, but gave certain relief to-the defendants in that action, based upon his conclusion that Felix’s-rights were disposed of by the judgment in this suit.

After that decision Avas made, but before judgment was entered therein, Felix made this motion in which he asked that the judgment in this action should be amended by inserting a provision that the adjudication was made without prejudice to his claims in the action in which he was plaintiff and the appellants here were defendants, and especially reserving from the effect of that adjudication all rights which he claimed to an abatement of the purchase price by reason of the defects in the title to the premises which he had bought. The learned justice granted the motion and directed that there should be inserted in the judgment in this action a clause reserving the rights of Felix and stating that it was not intended by that judgment to make any adjudication of these rights. From that order this appeal is taken. We'do not consider, in the determination of this appeal, the power of the court upon good cause shown to correct what is evidently a mere clerical error in the judgment, although the application for that direction may have been made after the judgment has been affirmed by the appellate court or after the time to appeal has expired. It is not necessary to consider how far such a correction of the judgment is within the power of the court. The question presented here, however, is whether it is within the power of the court at Special Term to correct a judgment in what may be a material particular after the appeal from the judgment has been heard and determined and the adjudication of the appellate court been finally entered.

There are in our judgment good reasons why no such power should exist, and the recent adjudications not only of the Court of Appeals but of the Supreme Court are conclusive against its existence. (Heath v. N. Y. B. L. B. Co., 146 N. Y. 260; Ray v. N. Y. Bay Extension R. R. Co., 34 App. Div. 3.) It was determined by these cases that after entry of judgment in an equity action the Special Term, in which the action was tried, has no power, on motion for a resettlement of findings and conclusions, to make amendments therein altering the decision on the merits and changing the substantial rights of the parties. That conclusion is fatal to the ajzplication here made. If there is error in a material matter in the judgment which has been entered at the Special Term, the only remedy of the party who alleges the error is to move for a rehearing of the case at the Special Term if an injustice has been done to him because of the failure to make certain proof which is within his power to make; or, if he claims that the injustice occurred because of an error of the trial court, his sole remedy is to seek a correction of that error by an appeal to this court. After that appeal has been taken and the judgment has been affirmed by the appellate court, the power of the Special Term over it is gone. It would not do to permit an alteration of a judgment in a material matter after the time to appeal from it had expired and especially when the rights of the parties had been settled by a determination of the appellate court. If that practice were allowed, it would be impracticable to know when the rights of parties were settled by an adjudication of the court.

The issues in this action presented by Felix did not, as it seems to us, involve the question presented for determination in the case of Felix against Devlin, and the learned court which decided that case was in error, as it seems to us, in its conclusion that the rights of the parties in that action were determined by this judgment. It was entiz-ely unnecessazy, therefore, for the court to gz-ant this motion for the purpose of protecting the interests of Felix in that case, because the adjudication in this action did not affect his interests in those particulars.

Bor this reason, also, we think the order -was erroneous and should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.

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