
    Henry Bohlen, App’lt, v. The Metropolitan El. R. Co. et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed June 17, 1890.)
    
    1. Judgment—Amendment.
    Courts should not, after final judgment, l>y amendment change a ruling upon the law, or alter the decision upon the merits; but where the amendment is in the line of the correction of a mistake or of an omission obviously due to the trial judge’s oversight, the power to make it is a general and incidental one, and the question is not one of terms or sessions of the court.
    2. Same—Code Civ. Peo., § 723.
    The intention of § 723, Code Civ. Pro., was that courts should, in fur therance of justice, disregard immaterial errors, defects and mistakes in the pleadings and proceedings of an action, and the only limitation imposed as to the making of corrections is that they shall not affect the substantial rights of the adverse party.
    Appeal from judgment of the New York superior court, general term, reversing order made at special term opening the judgment in the action and amending certain findings by the insertion of the words “ except as hereinafter found,” upon payment of costs and disbursements to the defendants.
    
      Charles Gibson Bennett, for app’lt: Brainard Tolies, for resp’ts.
    
      
       Reversing 30 N. Y. State Rep., 278.
    
   Gray, J.

The general term below have reversed the order, which amended certain-findings of fact made by the trial judge upon his decision of the case; and the reversal is placed upon the ground that the court was without power to make the order. The reasons assigned are, that the error was judicial and could not be corrected at a term other than that at which the judgment was rendered. This was error and it must have resulted from a misapprehension of the powers which are specially conferred by statute upon, as well as inherent in the court. The action was in equity to restrain the defendants from maintaining and operating their railroad in front of the plaintiff’s property, and to recover the damages sustained. The trial judge decided in the plaintiff’s favor, and in formulating his decision in findings of fact and in legal conclusions deducible therefrom, he stated certain facts with respect to the opening and maintenance of Second avenue and Sixty-fifth street by the public authorities. After reciting the acts of the legislature, under authority of which they were opened, the judge stated, as to each, that it “ thenceforth continuously has been, and now is appropriated and kept open for a public avenue (or street), highway or thoroughfare in the city of New York, in like manner as the other public streets and avenues in the said city are and of right ought to be.” Subsequently he found facts as to the construction, maintenance and operation of the road, showing it to be an obstruction, and appropriation of, and an interference with the plaintiff’s rights, and that they did not constitute a use of the street and avenue consistent with the ordinary street uses thereof. And his legal conclusion was that the plaintiff was entitled to his judgment, in consequence of the defendants’ acts. While the actian was pending, upon tlie defendant’s appeal to the general term, and some months later, the plaintiff and respondent moved the trial judge to amend the findings relative to the opening and maintenance of the avenue and street, so as to insert, where they stated that the avenue and street were kept open and appropriated as the other public streets are and of right ought to be, the words “ except as hereinafter found.” The court so ordered; in order, as it is stated, that the findings might conform to the decision of the trial judge. It is said by counsel that this step was taken because of a decision rendered by the general term in another cause, wherein, with similar findings, it had been held that, as they were in irreconcilable conflict with the conclusions of law, upon the principle that the appellant upon his exceptions is entitled to the benefit of the finding which is more favorable, the judgment must be reversed. There is no question as to the truth of the legal proposition, stated generally, but the principle has certainly been misapplied here. The trial judge’s consideration of the case having resulted in his deciding that the plaintiff should obtain the relief sought for by the action, was obliged by the Code of Procedure to formulate his decision in the separate statements of fact which induced his conclusion. It is quite obvious that these statements of facts are intended to be consistent with each other, in support, of the conclusions, and if apparently they are not so, the court must consider whether the difference is an actual one ; for if it can be seen that it is immaterial, or the result of inadvertence or omission, it should be disregarded. The effort must always be in the direction of supporting the conclusion by giving to the findings a fair and reasonable construction.

How here there is no irreconcible conflict in the findings; and we are not embarrassed in our consideration by the circumstance that the apparent conflict is between the formal decision of the court and some other findings made upon the request of the appellant and contained in the appeal book. The difference between the findings referred to as to the opening and maintenance of these public streets and as to their conversion to inconsistent uses seems to me quite an immaterial one in the disposition of the cause. The intent of the trial judge was to find,.in accordance with the theory of the action, that there was an opening of the street under legislative authority and that when opened they have remained public streets or highways and that there has been an appropriation of the public streets and an interference with the benefits afforded by tlieir maintenance as such to the property owners. An apparent ambiguity is discovered in his -findings which is plainly the result of some inadvertence on his part, and which our reason tells us is a mere mistake; one which is subject to correction at any time by the court and is within the spirit and meaning of § 728 of the Code. The intention in the enactment of that section was that courts should in furtherance of justice disregard immaterial errors, defects and mistakes in the pleadings and proceedings of an action, and the only limitation imposed as to the making of corrections is that they shall not affect the substantial rights of the adverse party. I am not aware that the courts have ever been denied the inherent power to correct their records, where the correction relates to mistakes, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth. They should "not, after the final judgment, by amendment change a ruling upon the law; or alter the decision upon the merits; for, by so doing, the substantial rights of the adverse party would be really affected. But, where the amendment is in the line of the correction of a mistake, or of an omission, obviously due, as in this case, to the trial judge’s oversight, the power to make it is a general and incidental one. The question is not one of terms or sessions óf the court The question for the court, when it is moved to reform or correct its records in such a case, is one of discretion turning upon the facts to which its attention is called. It has the undoubted power and its exercise only awaits the making out of a proper case. The authorities are abundant in support of these views, but the following are sufficient to be referred to: N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y., 357; Buckingham v. Dickinson, 54 id., 682; Dalrymple v. Williams, 63 id., 361.

The order of the general term should be reversed and that of the special term affirmed, with costs in both courts.

All concur, except Andrews, J., absent  