
    Donald Mackay, as Executor, etc., Resp’t, v. Rowland B. Dennington, as Administrator, etc., Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 14, 1894.)
    
    ■Judgment—Correction.
    A motion to correct the final judgment will not lie, when there is no inconsistency between it and the interlocutory judgment and no mistake therein. •
    Appeal from an order, denying a motion to correct the final judgment.
    Gilbert W. Bowne died November 27, 1853, leaving a will, which was duly probated, by which certain trustees, therein .appointed, were directed to pay the gross income on $20,000 to JaneE. Jessup during her life ; but instead of obeying such direction they deducted the taxes assessed on the sum invested, and ■paid to her the gross income, less such taxes. An action was brought, in which it was, by an interlocutory judgment entered Eebruary 16, 1872, adjudged, among other things: “(3) That the ■defendant Jane E. Jessup was and is entitled to the gross income ■of the $20,000 directed by the will of Gilbert W. Bowne to be invested for her, free and clear of any and all deductions or charges for taxes paid or to be paid on the principal sum invested or tobe invested. * * * (8) And it is further ordered, adjudged, and •decreed that the said Rhilo T. Ruggles ascertain and report how much or what amount is due and owing to the said Jane E. •Jessup, and ought to be paid to her by the said trustees, for or on account of taxes on the principal sum or investment which has produced or is producing such annuity.” July 23, 1881, Philo 'T. Ruggles, the referee appointed by the interlocutory judgment, filed his report, of which, so far as it relates to the rights of Jane E. Jessup, the following is a copy: “ Twenty-Eighth. I further report that, pursuant to the directions contained in said interlocutory decree, I have taken an account of the amount due and ■owing to the defendant Jane E. Jessup, and which ought to be paid to her by the said trustees for or on account of deductions they have made from her annuity for or on account of taxes on the principal sum or investment which was produced or is producing such annuity, and final and report that the aggregate sum so deducted from her annuity for or on account of taxes on the principal sum or investment is the sum of $6,265.20. Such.account, showing the particulars of such deductions, is hereto annexed, and marked ‘Schedule K.’ Such schedule shows also the amount of interest accrued on the several sums so deducted from said annuity for taxes to June 2, 1881, amounting to $7,298.15.”
    Statement showing payments for taxes (exclusive of income tax) charged to account of Jane E. Jessup (and the $20,000 trust fund), with interest computed from date of payment to January 1, 1880, at 7 per cent., and from January 1, 1880, to June 2, 1881, at 6 per cent.
    
      
    
    Afterwards an application was made on the interlocutory judgment, the report of the referee, and the exception thereto, for a final judgment, and, after hearing counsel for all of the litigants, it was, by a final judgment entered July 3, 1894, among other things, adjudged as follows: “It is ordered, adjudged, and decreed that the said report of Philo. T. Ruggles be, and the same is hereby, ratified and confirmed, and that all the exceptions to said report by any of the defendants be, and the same are hereby, overruled. * * * And it having been ordered, adjudged, and decreed by the interlocutory judgment herein entered on the 16th day of February, 1872, that the said Philo. T. Buggies,'the referee, ascertain and report how much or What amount is due and owing-to the said Jane E. Jessup, and ought to be paid to her by the said trustees, for or on account of deductions they had made from her annuity for or on account of taxes on the principal sum or investment which has produced or was producing such annuity ; and it appearing by the said report of the referee, bearing date the 1st day of July, 1881, that the amount due and owing to the defendant Jane E. Jessup, and which ought to be paid to her by the said: trustees, for or on account of deductions they had made from her annuity for or on accountof taxes on theprincipal sum or investment which has produced or was producing said annuity, that the said aggregate sum so deducted from the annuity was six thousand two hundred and sixty-five dollars and twenty cents: It is ordered, adjudged, and decreed that the defendant Rowland B. Dennington, as administrator with the will annexed of JaneE. Jessup, is entitled to recover, and that be do recover, from the estate of Gilbert W. Bowne the said sums so deducted for taxes without interest,, and that the same be paid to him by the United States, Trust Company of Hew York, the substituted trustee, out of the-principal of said trust fund of twenty thousand dollars, or out of any accumulated interest thereon, held or received by said company. * * * And it also further appearing that the said Jane E. Jessup died in the city of Brooklyn on the 13th day of December, 1886, without issue, leaving a last will, which was duly admitted to probate by the surrogate of the county of Kings, and the executor therein named died, after having qualified as such, and Rowland B. Dennington was appointed administrator with the will annexed of the said Jane E. Jessup ; arid it also further appearing that during the lifetime of the said Jane E. Jessup, by an order made by the supreme court, at a special term thereof, on the 23d day of November, 1886, the United States Trust Company of Hew York was appointed trustee in the place and stead of Harm an us B. Durvea and John Beveridge, deceased, the latter the surviving trustee of and under the will of Gilbert W. Bowne, deceased, of the said trust fund of twenty thousand dollars for the said Jane E. Jessup.” In June, 1894, the administrator of Jane E. Jessup moved on the interlocutory judgment, the report of the referee, and the final judgment at special term for an order that the final judgment be corrected so that the representative of Jane E. Jessup should be adjudged entitled to recover, in addition to the $6,265.20, the amount deducted for taxes, the amount ($7,298.15) of the interest on the sums paid for taxes, as shown by the report of the referee. This motion was denied, and the administrator of Jane E. Jessup appeals.
    
      E. T. Rice, for app’lt; Joshua M. Van Cott, for resp’ts.
   Follett, J.

It is not adjudged by the interlocutory judgment that Jane E. Jessup was entitled to recover interest on the amounts paid by the trustees for taxes on the trust fund and deducted from the annual payments made to her. That question was left for determination on the coming in .of the report. The referee had no authority to determine any question of law, and he did not assume to decide that Miss Jessup was entitled to interest on the sums paid for taxes. He simply reported the sums paid, the dates when paid, the interest on these sums, and left it with the court to determine by the final judgment whether interest should or should not be allowed. By the final j udgment it is determined that the representative of Miss Jessup is not entitled to interest on these sums. There is no inconsistency between the' interlocutory and final judgments, and there is no mistake which can be corrected on motion. The only way that the decision of the special term, embodied in the final judgment, can be reviewed, is by an appeal from that judgment. The order should be affirmed, with $10 costs-and disbursements. All concur.  