
    William Paine, App’lt, v. Elizabeth W. Aldrich, Impl’d, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891.)
    
    Judgment—Direction for entry.
    In an action tried before the court or a referee, the clerk has no judicial functions and no power except to enter the judgment directed by the court or referee. The court or referee must settle the judgment and direct that judgment to be entered, and it is not for the clerk to determine whether any paper corresponds with the judgment directed to be entered.
    Appeal by the plaintiff from a judgment of the special term, dismissing the complaint as against the defendant, Elizabeth W. Aldrich, and adjudging that the defendant recover of the plaintiff the sum of $1,110.60, costs and allowance.
    Action to set aside certain conveyances made by one John Paine on the ground that he was insane at the time of their execution.
    
      L. L. Kellogg, for app’lt; G. P. Smith, for resp’t.
   Per Curiam.

Upon an examination of this case it appears that it was tried before the court without a jury, and that it was an action seeking equitable relief.

The court has duly made its findings of fact and conclusions of law, and thereupon, it would appear from the appeal papers, the clerk has attempted to enter judgment by means of a postea; attached to the judgment roll. The court before whom the case was tried does not appear to have directed any such judgment, and, in fact, this postea contains relief which the clerk seems to have concluded the parties to be entitled to, but which the court, has refrained from giving them.

It has been determined by this court that in the case of a trial before a court or referee, the court or referee must settle the judgment to be entered, which is the language of the Code, and that the clerk has no power to determine whether a judgment comports with a direction to enter judgment or not The clerk has-no judicial functions and no power except to enter the judgment directed by the court or referee. Consequently, the court or referee must settle the judgment and direct that judgment to be entered; and it is not for the clerk to determine whether any paper corresponds with the'judgment which the court or referee has directed to be entered.

The whole proceeding seems to be absolutely irregular. The-papers before us do not disclose a judgment which can be reviewed upon appeal, and the case must be stricken from the calendar.

Yah Brunt, P. J., Brady and Daniels, JJ., concur.  