
    Henry G. Adams, Resp’t, v. Nathaniel Ash, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 25, 1887.)
    
    1. County courts—Jurisdiction of—Action fob specific performance —Code Civ. Pro., § 340.
    County courts have jurisdiction in actions to enforce the specific performance of contracts relative to real property.
    2. Actions—Object of, how determined—What court has jurisdiction of—How determined.
    The object of an action is to be determined by the allegations of facts set forth in the complaint and the relief demanded, and from such alleged facts the question is also to be determined whether the court, in which the action is prosecuted, has jurisdiction of the subject matter.
    3. Same—For specific performance—What decrees may be made.
    In actions to compel the specific performance of contracts for the sale of real property it is customary, in the case of default in payment by the vendee, for the court to order a sale if the sum found due is not paid within a stated time, but it may direct that in case of such failure to perform on the part of the vendee, he be barred and forever foreclosed of his right to claim specific performance of the contract.
    4. Order—Proper mode of vacating.
    In an action for the specific performance of a contract for the sale of real property it was decreed that the vendee should, within ten days after the entry of the judgment and service of notice thereof, pay to the vendor the amount found due. This time was extended by an ex parte order granted at the request of the vendee. Held, that the court had no power in mailing an order disposing of the vendee’s motion for a new trial to vacate the ex parte order; that if the vendor desired that such order be vacated he should have made a motion for that purpose.
    5. Jurisdiction of court—When it ceases with relation to action.
    After final judgment in an action the court in which it was determined has lost all jurisdiction over the subject matter, except to enforce the execution of the judgment rendered, and has no power on motion to change or modify it as to the matter involved in the issues tried and determined or which might have been tried or determined.
    6. Judgments—How far they may be modified on motions. '
    It is often necessary to insert in final judgments directions commanding the performance of certain things by the parties, for the purpose of carrying the final judgment into effect, which do not relate to the merits of the controversy, and as to such matters the judgment may be modified on motion.
    7. Same—Correction of—What may be made by motion.
    Where correction is asked for which is merely consequential upon the decree itself, the proper course is to supply the omission by a distinct motion.
    
      8. Same—Time for performance of act directed by—Court of equity MAY MODIFY.
    Courts of equity have the power to modify their judgments in respect to the time in which a party has been ordered to do an act with a view to carrying into effect the judgment.
    9. Same—may hot be modified by bx parte order—Order is binding until vacated.
    
      Held, that it was irregular to modify the judgment in that particular by an order granted upon an ex parte application, but that until vacated it remained in effect and could not be disregarded.
    Appeal from an order of the Erie county court denying the appellant’s motion for an order directing the plaintiff to execute the judgment on his part, and reversing an ex parte order previously granted, extending the time within which the appellant might pay to the plaintiff the sum found due from him as vendee on the land contract, for the specific performance of which this action was brought.
    The appellant was the vendee, and the plaintiff occupied the position of vendor, he having taken a conveyance of the premises and assignment of the contract since its execution. The defendant appeared in the action, but suffered a default. The final judgment determining the sum unpaid by the vendee on the contract to be the sum of $207.75, and costs were awarded against the defendant which were taxed at $63.49. The decree also provided that within ten days after the entry of judgment and service of notice thereof the amount of the judgment be paid to the plaintiff’s attorney at his office, and that a service of a copy of the judgment should be made within one day after its entry by service of a copy on the defendant’s attorney at his office, and by enclosing a copy in a post-paid wrapper directed to the defendant at his place of residence, and that such service should be deemed sufficient service, and, upon the payment of the sum found due, and costs, that the plaintiff execute and deliver to the defendant a warranty deed of the premises. After entry and the service of a copy of the judgment, and within the ten days mentioned, the defendant procured an ex parte order from the county court extending the time within which the defendant might make payment of the sum found due upon the contract, and ordering the judgment to be amended accordingly; and such payment, if made, to have the same effect as though made within the time required by the terms of said judgment as originally entered. The defendant made a tender of the amount due within the extended time, and demanded a deed from the plaintiff, who refused to receive the money and deliver the deed. Thereupon the defendant made a motion that the judgment be set aside upon the ground that the county court did not have jurisdiction of the subject matter of the action, and, if that relief was denied, that then the plaintiff be required to comply with the terms of the judgment and the order dated January 8, 1887, which extended the time of payment, and deliver to the defendant the deed as required by the terms of the original judgment.
    This motion was denied and the order, also, containing a provision revocating the order of January 8, 1887, which extended the time within which the judgment might be performed on the part of the defendant.
    
      L. LeClear, for app’lt; Fred. L. Bennett, for resp’t.
   Barker, J.

—County courts have jurisdiction in actions, to enforce the specific performance of contracts relative to real property. Code of Civil Procedure, § 340.

The purpose of this action as appears from the averments in the complaint and the relief demanded, was to enforce the specific performance of an executory contract, for the sale of real estate, by the purchaser, who is the defendant.

The object of an action is to be determined by the allegations of fact set forth in the complaint and the relief demanded. From such alleged facts, the question is, also, to be determined whether the court in which the action is prosecuted, has jurisdiction of the subject-matter. The judgment in this action, determines the amount of the purchase-money unpaid and requires the defendant to pay the same, within the time fixed for that purpose; and thereupon the plaintiff is required to execute and deliver a deed of the premises, and if the defendant omits to make payment within the time specified, he is in the language of the judgment, forever barred and foreclosed of all equity of redemption of, in and to the premises described in the contract.” There is no provision in the decree, directing a sale of the premises, if the vendee failed to pay the unpaid purchase-money, and if there should be any deficiency after applying the avails of the same, that the defendant be liable therefor.

The appellant contends that, because of the omission to insert such a provision, this action cannot be regarded as an action to enforce the specific performance of a contract, but should be treated as one to foreclose the vendee’s rights under the contract, and that, in actions of that character the county court has no jurisdiction. It is customary to direct a sale, in case the sum found is not paid within a specified time; yet, it is not a matter of course to order one, unless the vendor asked for it, as the county court may make a decree as in case of a strict foreclosure, where the case is a proper one for such a decree, providing that if the vendee does not pay the purchase-money within such time as may be limited for that purpose by the court, he pha.11 be barred and forever foreclosed of Ms right to claim a specific performance of the contract. Clark v. Hall, 7 Paige, 382

We are, therefore, of the opinion that so much of the appellant’s motion as asked that the judgment be set aside for want of jurisdiction was properly denied.

We are also of the opinion that so much of the motion as asked for an order that the plaintiff be required to accept the money tendered and comply with the terms of the judgment directing him to execute and deliver a deed of the premises should have been granted. Consequently, that part of the order wMch denies that part of the motion should be reversed.

In the order denying the appellant’s motion, a clause was also inserted vacating the ex parte order previously granted on his motion extending the time within which to perform the judgment on Ms part. This the court had no power to do, on disposing of the motion made by and on behalf of the appellant. The subject matter, whether that order should stand or be vacated, was not before the court. If the respondent desired a vacation of that order he should have made a motion for that purpose. The party interested in maintaining the order would then have had an opportunity to defend its .validity. The practice on this point is well settled. So much of the order as vacated the order of January 8, 1887, should be reversed.

This will leave that order in full force and effect, if it ever had any validity.

It has been argued by the respondent, that the court had no power to alter or change any of the provisions or terms of the final judgment, and for that reason the order directing the amendment was utterly void, and the plaintiff was justified in declining to accept the money tendered and refusing to deliver a deed, as the time had expired as fixed by the judgment, in which the tender should be made.

The county court in granting the order appealed from, considered this question as appears by its written opinion, and reached the conclusion that the court had no power on motion, after the entry of final judgment, to modify the same by enlarging the time within which the defendant might make payment of the sum found due the plaintiff on the contract.

These views of the court below as to its want of power to modify the judgment in the particular mentioned in the ex parte order, makes it proper for this court on this appeal to consider that question.

As to the subject matter of the amendment and the extent of it, we think the court possessed the power to allow the modification of the judgment on a motion made for that purpose. The general rule is that after final judgment has been entered in an action the court in which the same was pending has no power, on motion, to change or modify it as to the matters involved in the issues tried and determined by the court or jury, or which the parties might have tried and determined under the pleadings. The reason for the rule is, that after the final judgment the court has lost all jurisdiction over the subject matter except to enforce the execution of the judgment as rendered. The remedy given to the aggrieved party is to review the judgment on an appeal in the manner provided by law. Kamp v. Kamp, 59 N. Y., 212; Rockwell v. Carpenter, 25 Hun, 529; McLean v. Stewart, 14 id., 472; Clark v. Hall, 7 Paige, 382; Barb. Ch. Pr., vol. 1 (2d ed.), p. 366.

But in final judgments it is often necessary to insert directions commanding the parties to do particular things, for the purpose of carrying the judgment into effect, which do not relate to the merits of the controversy, and, as to such matters the judgment may be modified on motion. The court possessed the inherent power to correct irregularities and clerical mistakes, after the entry of judgment and by the insertion of other provisions or directions which would have been inserted as a matter of course, if asked for at the hearing, and such as are necessary and proper to carry into effect the decision of the court.

Where a further correction is asked for, and which is merely consequential upon the decree itself, the proper course is to supply the omission by distinct motion without altering the decree. Clark v. Hall, 7 Paige, 382.

The courts of equity in this state and in England have the power to modify their judgments in respect to the time in which the party has been ordered to do an act with a view of carrying into effect the judgment. Such a modification is justified upon the ground that it does not change the substance of the judgment. Perine v. Dunn, 4 John. Ch. 140; Hogan v. Hoyt, 37 N. Y., 300.

In the case before us, the time within which the vendee was to make payment of the sum found due on his judgment is brief beyond any precedent, so far as we know. It is the practice of this court to allow a much longer time, usually not less than the time which an execution runs when issued upon a judgment for collection of money in an action at law. We may assume that the time inserted was a mere clerical mistake, and that it was the intention of the court to allow the customary time as established by the practice of the courts of this state. It is impossible for us to believe that the time fixed received the sanction of the learned judge who tried the action, and we think it must have been Inserted without his attention being called to that provision of the judgment and that it did not receive Ins deliberate approval. If he had, in his examination of the question, come to the conclusion which we have, that the county court possessed the power to enlarge the time, we cannot but think he would have approved of his previous action in doing so.

We concur with the respondent’s counsel that it was irregular for the court to grant the order enlarging the time on an ex parte application, but the respondent has no right to disregard the same for that reason. It was to be respected and observed until the same was vacated. Gould v. Root, 4 Hill, 554; Starr v. Francis, 22 Wend., 633; Hunt v. Wallis, 6 Paige, 371; Wait’s Practice, 612.

But we think the record discloses facts and circumstances fairly indicating that notice of motion was waived by the respondent, and the order cannot now be regarded as irregular.

So much of the order appealed from as vacates the order of January 8, 1887, enlarging the time, etc., and also so much of the order as denies the motion asked for in the second clause of the notice of motion is reversed. In all other respects the order is affirmed, without costs of this appeal to either party.

All concur.  