
    LEWIS ROBERTS, Plaintiff and Appellant, v. HENRY WHITE, and another, Ex’rs, &c., Dependants and Respondents.
    ENTRY OE JUDGMENT, REGULARITY OE.
    Upon the trial of an issue of fact by the court, its decision shall be given in writing, &c. {Code, § 267).
    The decision is a judicial act, and is complete when reduced to writing.' Whatever remains to be done, is a mere clerical act to be done by the clerk, to wit: entry of judgment.
    Reducing the decision to writing, concludes the trial, and authorizes the judgment and completes the official act of the judge, and the decision could be filed and the judgment be entered by the clerk at any time afterwards.
    The expiration of the judicial term of the judge, after the decision, yet before such filing of the same and entry of the judgment thereupon, would not make such entry irregular.
    A decision in writing that contains more than is authorized by law, may be modified by the court, on the motion of the party in whose favor it was rendered, by omitting therefrom so much as was erroneous, and retaining so much as was authorized by •law.
    The special term can thus modify a decision, and direct the court to enter a judgment upon it, in a modified form.
    The party against whom the same was rendered, is not prejudiced by such a modification and entry. But such a judgment should not be entered as of an anterior date. Such an entry might affect the rights of others not parties.
    
      Before Monell, Ch. J., and Curtis and Speir, JJ.
    
      Decided May 3, 1875.
    Appeal from a judgment and order.
    The action was to obtain an injunction restraining the defendants from interfering with a party wall. It was tried at special term in February, 1863, by the late Chief Justice Barbour, without a jury. He made and signed his findings of fact and conclusions of law, but they were not filed during his continuance in office. His term expired December 31, 1873.
    The conclusions of law were: “That the defendants are entitled to a reference to ascertain what, if any, damages they have sustained by reason of the injunction issued at the instance and on behalf of the plaintiff herein; and, that the defendants are entitled to judgment against said plaintiff for the amount of said damages, and for a dismissal of the complaint herein and for costs.”
    In June, 1874, upon the defendants’ application to the special term, it was “ ordered that the said decision be filed, and that judgment be entered thereon, nune pro tune, directing the dismissal of the complaint in this action with costs to be adjusted, said judgment to be settled as to form upon two days’ notice.”
    Judgment was thereupon entered against the plaintiff, dismissing the complaint and for costs.
    No reference was had to ascertain the damages by reason of the injunction, or if had, no judgment was entered thereupon; and it was conceded, under the authority of Leavitt V. Dabney (9 Abb. Pr. JV. JS. 374-384), that so much of the conclusions of law as directed a reference to ascertain the damages, and as awarded judgment therefor, was erroneous.
    The judgment under the order of the special term
    was entered as of October 5, 1865.
    
      The plaintiff appealed from the order and judgment.
    
      C. Tracy and U. R. Martin, for appellant.
    
      W. A. Butler and P. W. Ostrander, for respondents.
   By the Court.—Monell, Ch. J.

—The judgment as entered, being merely for a dismissal of the complaint and for costs, no question arises upon it, except as to the regularity of its entry. The error in directing a reference before judgment, and awarding damages as part of the judgment, was not repeated in the judgment as entered.

It is now claimed—and the appeal from the order of the special term furnishes the facts and presents the question—that no judgment could be entered upon the decision of the justice who. tried the cause, after the expiration of his term of office.

Upon the trial of an issue of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts found, and the conclusions of law (Code, § 267).

The decision is a judicial act, and is completed when reduced to writing. Whatever remains to be done is a mere clerical act.

The same section of the Code (267) provides, that judgment upon the decision shall be entered accordingly ; and it is the duty of the cleric to make the entry (Schenectady, &c. Pl. R. Co. v. Thatcher, 6 How. Pr. 226; Loeschigk v. Addison, 3 Robt. 331, 338).

Reducing the decision to writing concludes the trial and authorizes the judgment, lio allocatur of the justice is required. The clerk on filing the decision enters the judgment strictly in conformity with the decision.

It is very clear, I think, that when the late chief justice reduced his findings of fact and law to writing, and subscribed them with his name and office—as he did in this case—he had completed the trial and the clerk was authorized at once to enter the appropriate judgment. Had he done so, any errors in it could have been corrected only on appeal. The judgment would have been entirely regular.

If, therefore, the only remaining duty was upon the clerk, he could discharge it at any time afterwards ; and no lapse of time, nor the expiration of the judicial term of the justice, would render the entry irregular.

The omission to enter the judgment was caused, as it appears, by the reference which was ordered to ascertain the damages. Until the referee made his report, no final or complete judgment under the decision could be entered. But it was competent for the defendants to waive the reference and consent to a judgment in a modified form, omitting so much as was erroneous, and retaining so much only as was authorized by law.

It was necessary, or at least proper, therefore, for the defendants to go to the special term for an order modifying the decision, and authorizing the clerk to to enter a judgment upon it in a modified form.

As it was, before the order of the special term, it might be regarded as only an interlocutory decision, which would remain in abeyance until the damages were ascertained, when the final judgment could be entered. In that case, no other judge of the court could continue the trial and pronounce the final judgment (Chamberlain v. Dempsey, 15 Abb. 1).

By waiving the reference, however, and surrendering so much of the decision as provided for the damages to be ascertained by the reference, the court had power to authorize the clerk to enter final judgment upon the decision. And the exercise of such authority was not an unlawful or improper act of the court.

I can not find any irregularity in the entry of judgment. The plaintiff has.not, and can not be prejudiced by its modified form, and the order authorizing the modification was correct.

But I am not satisfied that it was correct to direct the Judgment to be entered as of an anterior date. Even the power to do so was questioned in Moore v. Westervelt (14 How. Pr. 279), and I can discover no reason for it in the present case. It may affect the rights of others, not parties, and can conserve no important purpose of the defendants.

I think the order in that respect should be changed, and that the special term should, if the plaintiff desires it, direct the entry of judgment to be altered accordingly.

The judgment and the order (as modified) should be affirmed, with costs.

Curtis and Speir, JJ., concurred.  