
    (84 Hun, 302.)
    HEATH v. NEW YORK BUILDING LOAN BANKING CO.
    (Supreme Court, General Term, Second Department.
    February 11, 1895.)
    Judgment—Amendment—Substantial Change.
    A judgment granting leave to plaintiff to redeem land conveyed to defendant loan association to secure a loan, on payment of the amount found to be due to defendant, including the premium bid by plaintiff to secure the loan, which defendant, in his answer, alleged to be due, cannot after-
    • wards 'be amended by disallowing such item, since such amendment is not a correction of a clerical error, or a mistake of computation, but changes the substantial rights of the parties.
    Appeal from special term, Kings county.
    Action by George H. Heath against the New York Building Loan Banking Company to set aside a mortgage and rescind a deed and agreement. From an order resettling the findings in the action, defendant appeals.
    Reversed.
    Argued before" DYKMAR, PRATT, and CULLER, JJ.
    Booraem, Hamilton, Beckett & Ransom, for appellant.
    A. J. Perry, for respondent.
   CULLEN, J.

This is an appeal from an order of the special term resettling the findings in an action tried before the court without a jury, and modifying the judgment granted therein. The action was brought to set aside a mortgage, and to rescind a deed and agreement, upon plaintiff paying to the defendant the amount of its advances. It resulted in a judgment which purported to dismiss the complaint on its merits, and at the same time allowed the plaintiff to redeem within a given period, on payment of a specified sum; and, on his failure to redeem, it decreed a sale for the payment of defendant’s lien. The decree adjudged that there was due and owing to the defendant, and a lien on the land, the sum of $8,014.60. Of this amount, $3,800 was the premium bid by the plaintiff to secure the loan. In this judgment the defendant acquiesced. Two months after it was rendered, the plaintiff, on an affidavit that there was no consideration for this item of $3,800, and that it was either imaginary and void or usurious, applied to the court to strike the allowance of the item from the findings, and to reduce the amount fixed by the judgment accordingly. The order appealed from granted the application to the extent that it reduced the amount allowed for the premium from $3,800 to $211.12.

We think the order of the special term erroneous. The power of this court to correct its records is unquestionable. Bohlen v. Railroad Co., 121 N. Y. 546, 24 N. E. 932. The case cited, while it affirms the existence of this power in its broadest extent, also enunciates the principles upon which the power should be exercised:

“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.”

In the present case the amendment corrected no clerical error nor mistake of computation, but it changed the substantial rights of the parties. The defendant, in its answer, set up a counterclaim, alleging that this sum of $3,800, with others, was due to it, and prayed for a sale of the land to satisfy its claim. The judgment and findings allowed this claim to the defendant. By the amendment, the claim is disallowed, except to the extent of $211.12. This does not arise from arithmetical mistake, but from a substantial difference in the rulings of the court between the original and amended findings as to the legal rights of the defendant. ¡Nor is the amendment made to conform the record to the actual decision of the court. The plaintiff, in his affidavit, does not claim that the judgment and findings do not accord with the decision made. His allegation concerning this disputed item is not that the court did not allot it, but that the court should not have allowed it. It may very well be that the original award to defendant was erroneous, and the present award is correct; but the error was to be corrected either by appeal or by the grant of a new trial. It may be, also, that the plaintiff presented such a case of surprise or neglect upon the part of his attorney as to justify granting him a new trial. If a proper case is made, he may still obtain that relief; but the judgment should not have been changed, except after a new trial, upon which the defendant would have had opportunity to produce additional evidence and justify its claim. The order appealed from should be reversed, and the motion denied, with $10 costs and disbursements. All concur.  