against him, the obligation as to all of the others becomes thereupon merged in the judgment, and no right of action survives against any of them. Candee v. Smith, supra. In view of the rule stated, it is unquestionably true that the plaintiff in an action brought upon a joint obligation, who deliberately and intentionally takes judgment against one of them, instantly releases the other joint obligors; and this must be true, independent of whether or not such plaintiff knew the legal effect of his act. That, however, is not the case presented by this appeal. The appellant had a perfect right to take judgment against one class of defendants, without impairing its right to prosecute the action to final judgment against the other class, to wit, the Weston Bros., who were joint obligors. When entering judgment against the defendants who were not thus jointly liable, defendant's attorney, by mistake and inadvertence, included the name of one defendant who was jointly liable as a copartner. Immediately upon discovering the mistake, and before any one had been prejudiced thereby, it sought to be relieved therefrom, and to have the judgment corrected by striking the name of William W. Weston, such joint obligor, from the same. Had the court power to grant such relief?

The general rule may be stated to be that courts always have control over their own proceedings, and, where there is no express prohibition, may deal with them so that what is just and right may be reached. Matter of City of Buffalo, 78 N. Ý. 362. The court has power, independent of statute, to modify, vacate, and set aside its orders and judgments, and may exercise it in behalf of one in whose favor the order or judgment was entered. Dietz v. Farish, 43 N. Y. Super. Ct. 87; National Broadway Bank v. Hatch, 66 Hun, 401, 21 N. Y. Supp. 395. It was held in Dinsmore v. Adams, 48 How. Prac. 274, affirmed 66 N. Y. 618, that the court has control over its judgments, and will vacate them whenever they have been improperly obtained; that such power is inherent, and not limited by section 724 of the Code. Many other cases might be cited to the same effect, and holding that the court has inherent power to vacate, modify, or correct its judgments, except such power is limited by statute, and the only limitation which has thus been imposed is that a motion to vacate, modify, or correct must be made within one year, as provided in section 1282 of the Code of Civil Procedure.

In Hatch v. Central National Bank, 78 N. Y. 487, it was held that, after the satisfaction of a judgment in favor of the plaintiff, it is within the discretion of the court to vacate it, and to amend the complaint by adding new causes of action, although by so doing the statute of limitations is avoided. In that case the court said:

"In Dean v. O'Brien, 13 Abb. Prac. 11, the plaintiff was allowed to amend by enlarging his cause of action, although he thus avoided the statute of limitations, and it might affect third parties. These (and there are many other cases) show the power of the court over its own judgments, and its habit to exercise it in the aid of justice. It is an inherent power, and not limited in matters of substance by the sections of the Code."

In Vanderbilt v. Schreyer et al., 81 N. Y. 646, the plaintiff brought an action to set aside certain conveyances because fraudulent and void. The defendant Schreyer demurred to the complaint. The issue

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upon the demurrer was brought to trial, and the demurrer was overruled, with liberty to the defendant Schreyer to answer. He did not answer, and judgment was entered against him. A few days after the entry of such judgment an order was made severing the action as between the plaintiff and Schreyer individually from the action between the plaintiff and the other defendants, and allowing the plaintiff to proceed with the action against the other defendants. Schreyer in due time appealed to the General Term from the judgment entered against him. Thereafter the plaintiff claimed that the judgment against Schreyer was conclusive against the other defendants, and, by permission of the court, was allowed to serve a supplemental complaint upon the other defendants, setting up such judgment. Upon motion, Schreyer was permitted to discontinue his appeal, to open the judgment obtained against him, to withdraw his demurrer, and to answer, upon the payment by him of certain costs. It was urged that the court below did not have power to make the order vacating the judgment. The Court of Appeals (81 N. Y. 648) said:

"The power of the Supreme Court to open defaults, to set aside or vacate judgments, and to permit pleadings to be served, in furtherance of the ends of justice, is unquestionable. It is a power exercised continually, and grows out of the control it has over its own records and judgments, and the actions pending therein. There are so many occasions for its exercise that it should not be curtailed. Whether the power shall be exercised in any case rests in its discretion, with the exercise of which this court will not ordinarily interfere. The power does not depend upon section 724 of the Code, but it exists independently of that, and inheres in the very constitution of the court. A judgment entered upon demurrer is no more sacred and final than any other final judgment, and may be relieved against with as much propriety as any other. Fisher v. Gould, 81 N. Y. 228. The power must not be arbitrarily exercised, so as to deprive a party of a valuable right secured. But when the facts exist showing that the ends of justice may require its exercise, the Supreme Court must deal with its own records, generally subject to no review bere."

We can discover no distinction in principle between the case last referred to and the one at bar. In this case the defendant, by entering the judgment in question, was deprived of an important right by an act done through its attorney, not, as found by the Special Term, designedly or intentionally, but through mistake and inadvertence. Immediately upon discovering such mistake it asked the court to relieve it from the effects of such act by vacating and setting aside the judgment which it had entered. Being satisfied that the judgment was entered through mistake and inadvertence, we think the court had ample power to vacate it, and was justified in so doing. The respondent, by reason of such mistake, was led to do no act, except to seek to take advantage of such mistake. All of the defenses available before the mistake were equally so after its correction. In fact, the defendants in the action, Abijah and Orrin Weston, had denied under oath that they were joint obligors with William W. Weston upon the note; but when the plaintiff, through mistake, had entered judgment against William W. Weston, they then sought to claim that they were jointly indebted upon the note with him-desired to change the position which they had originally taken, and which, when the action was subsequently tried, was found to be correct by the trial

court and the Appellate Division, and judgment dismissing the plaintiff's complaint, and in favor of the defendant Abijah Weston, was rendered. When the Court of Appeals, however, determined that the defenses set up in the original answer could not be maintained by those defendants in that action, they seek by this action to compel the defendant bank to stand by its act in entering judgment against William W. Weston, although the Special Term and General Term have declared that such act was the result of mistake and inadvertence, and done under such circumstances that the bank was equitably entitled to be relieved from the effects thereof. We refer to these circumstances for the purpose of suggesting that, as appears to us, there are no equities existing in favor of the respondent which call upon a court of equity to exercise the extraordinary power of restraining an action at law, even if such power exists upon the facts disclosed by the record before us. Without, however, passing upon that question, having concluded that the Special Term had the power (and properly exercised it) to vacate the judgment entered against William W. Weston as by default, it having been thus entered through mistake and inadvertence, and therefore that it was justified in denying defendant's motion, made in that action, for leave to serve a supplemental answer setting up as a defense the entry of said judgment, it follows that the judgment appealed from should be reversed, and a new trial granted, with costs to the appellant to abide event.

Judgment reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only; the facts having been examined, and no error found therein. All concur.

(41 Misc. Rep. 335.)

DUNSCOMB et al. v. POOLE.

(Supreme Court, Special Term, New York County. August, 1903.)

1. JUDGMENT-AMENDMENT.

Where, in an equity action, judgment has been entered on findings of fact and conclusions of law, on motion for resettlement the court cannot amend so as to alter the decision on the merits; Code Civ. Proc. § 723, authorizing only such amendments as do not affect the merits.

2. SAME.

Where a judgment has been rendered for defendant for the surrender to him by plaintiff of certain securities, he cannot have the same changed into one for money damages.

Action by Godfrey Dunscomb and Frank E. Jennison against John H. Poole. Judgment for defendant. Motion to amend. Denied. See 82 N. Y. Supp. 1099.

Curtis, Mallet, Prevost & Colt, for plaintiffs.
Cantor, Adams & McIntyre, for defendant.

DAVY, J. This is a motion upon an order to show cause why the decision and judgment of the trial court herein should not be amended nunc pro tunc as of May 31, 1902, as follows: By striking out the fifth and seventh conclusions of law, and each and every part thereof,

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and inserting in lieu thereof the following conclusion of law, to be numbered "Sixth," viz.:

"Sixth. That by reason of said wrongful conversion and misappropriation of said property by the plaintiffs, and the damage sustained by him thereby, and by reason of plaintiffs' violation of the said agreement and understanding with defendant, and the terms thereof, under which they retained said twenty-two $1,000 bonds of the Denver & Southwestern Railway Company on deposit, this defendant became entitled, and is now entitled, to recover of the plaintiffs, Godfrey Dunscomb and Frank E. Jennison, and each of them, the value of said bonds, $980 each, back from plaintiffs, together with all interest accrued thereon, collected and retained by plaintiffs, free, clear, and discharged of and from any claim or lien of plaintiffs therein and thereon, upon payment to plaintiffs of the amount of defendant's indebtedness to plaintiffs of $6,631.86, less $2,437.50 damages sustained by defendant through the said conversion of his 500 shares of stock, together with an extra allowance of $250, and the costs and disbursements of this action, to be taxed by the clerk of the county of New York."

Second. Why the judgment entered herein on June 20, 1902, should not be amended by striking out the paragraphs of said judgment numbered "First" and "Second," and each and every part thereof, and by inserting in lieu and in place thereof, nunc pro tunc as of June 20, 1902, after the words "ordered, adjudged, and decreed as follows," the following:

"That the plaintiffs pay to the defendant, and the defendant, John H. Poole, have and recover of the plaintiffs, Godfrey Dunscomb and Frank E. Jennison, and each of them, the sum of $16,942.71, with the sum of $1,080.57, interest on such sum from May 28, 1901, amounting together to the sum of $18,023.28, and also the further sum of $378.80, defendant's costs and disbursements as taxed, including an extra allowance, making in all the sum of $18,402.08, and that defendant have execution therefor."

Third. In case the amendments above referred to be not granted by the court, why the said decision and judgment herein should not be vacated and set aside, and this action be sent back to the Special Term of this court, and restored to the calendar thereof for trial, so that the defendant may obtain a money judgment herein.

It appears from the record that on June 20, 1902, the following judgment was, on motion of defendant's attorneys, entered on the decision of the trial court:

"First. That the defendant recover and the plaintiffs deliver and surrender up to the defendant the twenty-two (22) gold coupon five per cent. bonds of the Denver & Southwestern Railway Company, of the par value of one thousand dollars ($1,000) each, mentioned in the said decision, and all interest accrued thereon, collected and retained by plaintiffs subsequent to May 28, 1901, the date of the commencement of this action, together with the sum of $378.80 costs as taxed, including an extra allowance upon payment to plaintiffs by defendant of the sum of four thousand six hundred and seventeen and 29/100 dollars ($4,617.29); or,

"Second. In lieu and place of such surrender of said bonds, and each of them, and the payment of said interest, and in case same be not made, that the plaintiffs pay to the defendant, and the said defendant, John H. Poole, have and recover of the plaintiff's, Godfrey Dunscomb and Frank E. Jennison, and each of them, the sum of $16.942.71, with the sum of $1,080.57, interest on such sum from May 28, 1901, amounting together to the sum of $18,023.28, and also the further sum of $378.80, defendant's costs and disbursements as taxed, including an extra allowance, making in all the sum of $18,402.08, and that defendant have execution therefor."

Plaintiffs appealed to the Appellate Division from the foregoing judgment, which was affirmed May 15, 1903. After the affirmance of the judgment by the Appellate Division (83 App. Div. 642, 82 N. Y. Supp. 1099), plaintiffs offered to deliver the 22 Denver & Southwestern Railway Company bonds to the defendant on the payment of defendant's indebtedness to plaintiffs. Defendant, by his attorneys, refused to consider this offer. It is clear that, if this amendment is granted, it will affect the substantial rights of the plaintiffs. The rule is well settled that, after an entry of judgment in an equity action based on findings of fact and conclusions of law, the judge at Special Term who tried the action has no power, on motion for resettlement of the findings, conclusions, and judgment, to make amendments therein altering the decision on the merits, and changing the substantial. rights of the parties. The authority given to the court by Code Civ. Proc. § 723, to make amendments, is confined to such as do not affect the merits. The spirit and meaning of this section of the Code is that the courts, in furtherance of justice, may disregard immaterial errors, defects, and mistakes in the pleadings and proceedings of an action, but they are not permitted to make corrections that will affect the substantial rights of the adverse party. Heath v. N. Y. B. L. B. Co., 146 N. Y. 260, 40 N. E. 770; Bohlen v. M. E. R. Co., 121 N. Y. 551, 24 N. E. 932. The judgment in this case was entered in accordance with the findings and conclusions of law, and there is no ambiguity in the language; and it would be an unusual adjudication for this court, after an appeal from the judgment has been taken, and the judgment affirmed, to amend the findings, conclusions, and judgment to conform to the views of the defendant, or to meet some supposed equity subsequently discovered. The proposed amendments in this case are clearly not the correction of a clerical error. There was no mistake in the findings, conclusions, and judgment. The judgment rendered was what the defendant, in his counterclaim, asked for, and what the trial judge meant to give. The motion, therefore, must be denied, with $10 costs to the plaintiffs.

Motion denied, with $10 costs.

HACKETT v. MASTERSON.

(Supreme Court, Appellate Division, Second Department. November 20, 1903.) 1. MASTER AND SERVANT-NEGLIGENCE--COMPLAINT -- ALLEGATIONS SIONS.

· ADMIS

Where, in an action by a servant against the master for injuries, the complaint alleged that defendant "owned or had control of the rolling stock, equipments, and appliances used in the work," the allegation being preliminary and general, its admission by the answer cannot be construed as an admission by defendant that he owned and controlled an implement which he had never furnished for the work, nor permitted to be used therein.

2. SAME-LIABILITY OF MASTER-APPLIANCES-USE OF APPLIANCE NOT FURNISHED.

Where the master furnishes adequate appliances for the work, he is not liable for injuries to a servant resulting from a part of the apparatus