Heath v. New York Bldg. Loan Banking Co.

• Decision Date: 28 May 1895
• Citation: 40 N.E. 770,146 N.Y. 260
• Parties: HEATH v. NEW YORK BUILDING LOAN BANKING CO.
• Court: New York Court of Appeals Court of Appeals

146 N.Y. 260

40 N.E. 770

HEATH

v.NEW YORK BUILDING LOAN BANKING CO.

Court of Appeals of New York.

May 28, 1895.

Appeal from supreme court, general term, Second department.

Action by George H. Heath against the New York Building Loan Banking Company for the rescission of a contract. There was a judgment for defendant, and from an order of the general term (32 N. Y. Supp. 454) reversing an order of the special term allowing an amendment to the judgment, plaintiff appeals. Affirmed.

AMENDMENT OF JUDGMENT.

A judgment for a defendant cannot be amended by disallowing one of the items on which it was rendered as usurious, since such an amendment changes the substantial rights of the parties, within Code Civ. Proc. s 723, allowing the court to correct mistakes in process, pleadings, and other respects so long as the substantial rights of the parties are not affected. 32 N. Y. Supp. 454, affirmed.

A. J. Perry, for appellant.

Wm. H. Hamilton, for respondent.

BARTLETT, J.

This is an appeal from an order of the general term, Second department, reversing an order of the special term resettling the findings of fact and conclusions of law after judgment entered, and modifying the judgment. The plaintiff is a stockholder in the defendant company, and, as a borrower of money therefrom, sued to have declared fraudulent and void a deed, mortgage, and agreement, and that he be allowed to rescind the same by paying the amounts advanced by defendant, less a sum paid by plaintiff for the stock of defendant, and fees paid defendant for making the loan. The defendant interposed a defense, not material to consider in detail at this time. On the trial the plaintiff failed to prove his cause of action, and his complaint was dismissed. At the close of plaintiff's case it only remained for defendant to prove the amount due to it from plaintiff, which was accordingly done. Thereupon the court found, among other things, that there was due from plaintiff to defendant $8,014.66, together with certain amounts of fines and interest. Then followed the legal conclusions, among others, that, if plaintiff paid these amounts within six months from entry of judgment, he should receive a reconveyance of his property, subject to certain liens, and the agreement or lease and shares of stock were to be canceled. If the plaintiff failed to pay these amounts within the time indicated, he was to be barred and foreclosed of his rights, the premises sold, and proceeds brought into court and applied in the usual way. Judgment was entered in accordance with these findings and conclusions. After the time to appeal from the judgment had expired, the plaintiff procured from the justice who tried the case an order, returnable before him at special term,...