
    Charles H. Pond, Appellant, v. New Rochelle Water Company, Respondent.
    Second Department,
    October 7, 1910.
    Judgment — amendment inconsistent therewith not authorized— settlement of form of judgment — notice.
    After the entry of a decree adjudging that the plaintiff is entitled to a supply of water from the defendant water company at a stated rate per annum, “such supply to be unlimited by meters or any other device other than the size of the taps or openings in the defendant’s water mains,” and enjoining the defendant from varying or altering the terms and conditions of the water supply, the court has no power to amend the decision and judgment so as to state that it is without prejudice to the defendant’s right to maintain a water meter installed on the plaintiff’s premises pursuant to the order of another judge, “hut not for the purpose of charging for the water consumed at the metered rates.” This, because such amendment is inconsistent with the provisions of the original judgment and is not a mere correction of an error or mistake.
    A notice of settlement of the form of a judgment or decision need not he served upon the defeated party in the absence of an express direction of the court to that effect or an agreement of parties.
    Appeal by the plaintiff, Charles H. Pond, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of June, 1910.
    
      Henry G. K. Heath, for the appellant.
    
      John J. Crennan, for the respondent.
   Jenks, J.:

This appeal is from an order of the Special Term that amends a decision upon trial at Special Term, and the judgment entered thereon. At the conclusion of the- trial each party submitted a decision; thé court, without further notice or requirement for settlement on notice, signed the decision submitted by the plaintiff, and the judgment directed in accord was entered. The judgment provided that the plaintiff, as a private consumer of water, was entitled to a supply of water to his house and to his stable through two separate service pipes, one to each, at “ a flat rate not to exceed $22.50 per house and $5 per stable, per annum, suclr supply to be unlimited by meters or any other device other than the size of the taps or openings in the defendant’s water mains, connecting such service pipes or pipe, to house and to stable, and which taps or openings in said mains shall not exceed three-quarters (f) of an inch, inside diameter, and with the right and privilege to the plaintiff to use such supply of water upon his premises, for the usual domestic uses of water, in and about the plaintiff’s premises and buildings thereon, and the defendant, its officers and agents, are hereby permanently en joined until October 22,1924, from charging or exacting a greater charge than hereinbefore stated, or from varying or altering the terms and conditions of such supply.” The amendment of the decision is as follows: “ This decision and the judgment to be entered hereon are without prejudice to the rights of the defendant to maintain the meter installed in the plaintiff’s premises in pursuance of the order of Mr. Justice Tompkins, entered September 10, 19U8, for the purposes stated in said order, but not for the purpose of charging for the water consumed at the metered rates.” And the judgment is resettled.by adding thereunto: “It is ordered that this judgment shall be without prejudice to the rights of the defendant to maintain the meter installed in the plaintiff’s premises in pursuance of the order of Mr. Justice Tompkins, entered September 10, 1908, for the purposes stated in said order.and not for the purpose of charging for the water consumed at the metered rates.”

I- think that the order must be reversed. The judgment expressly afforded the right to the plaintiff to take the water from the defendant in a supply “unlimited by meters,” while the amendment affords the express right to the defendant to maintain a meter in the premises of the plaintiff. “ The purposes stated in said order ” seem to be the regulation and limitation of the'supply. Hence we have this situation. The judgment affords the right to a supply unlimited by meter, the amendment denies the right save as limited by meter. The application of the defendant does not rest upon contention of any error or mistake, or that the decision is not in accord with the record, but, in the language of Andrews, J., in Standard v. Hubbell (123 N. Y. 527), it is “ to limit the legal effect of the judgment to meet some supposed equity subsequently called to its [the court’s] attention.” Such an order is, in the language of Freeman on Judgments (4th ed. § 70), “ clearly judicial and revisory, being devoted to correcting its supposed errors or its want of action, and not to making its records speak the truth.” The same learned author points out in the same section, citing authorities, that .in this State the omission from a decree of any matter which if applied for on the hearing would have been granted as a matter of course, “ as necessary or proper to carry into effect the decision of the court,’ will be supplied on motion.” But how can we assume in the face of the direct provision of the judgment that the supply should be unlimited by meter, that the court upon the hearing would have . awarded to the defendant the right to limit the supply by meter ? For these reasons I think that the order as made was not within the power of the Special Term. (See, too, Heath v. N. Y. B. L. B. Co., 146 N. Y. 260; Bohlen v. M. E. R. Co., 121 id. 546.) The defendant showed upon the application that no notice of settlement of the form of judgment or decision was served upon it. But I think that, in the absence of any express direction of the court or of special arrangement of the parties, such notice was not requisite. (See People v. Albany & Susquehanna R. R. Co., 57 Barb. 204.)

The order is reversed, with ten dollars costs and disbursements, and the motion denied, with costs.

Woodward, Thomas, Rich and Carr, JJ., concurred.

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