#### Maldonado & Co., Respondent, *v.*Luis F. Yglesias and Alfredo Lobo, Copartners Doing Business under the Firm Name and Style of “Yglesias, Lobo & Co.,” Appellants.

First Department,

April 17, 1914.

Judgment — final judgment upon the merits —judgment on pleadings in favor of defendant, without leave to plaintiff to amend —authority of clerk when entering judgment—motion to amend judgment.

A judgment entered upon a decision of the Appellate Division reversing an order of the Supreme Court and granting a motion of the defendant for judgment on the pleadings, but without leave to the plaintiff to amend, is necessarily final and upon the merits.

But the clerk on entering such a judgment has no right to insert therein the words “ upon the merits,” notwithstanding the fact that they do not change its legal effect, and where this has been done, the plaintiff is entitled to have them stricken out.

The clerk on entering a judgment has no authority to construe the orders or decisions of the court.

Appeal by the defendants, Luis .F. Yglesias and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of September, 1918, amending the judgment herein by striking out the words “ upon the merits. ”

*2*Mark G. Holstein,*for the appellants.

*Adam K. Stricker [James J. Franc*with him on the brief], for the respondent.

Laughlin, J.:

This is an action for libel. The alleged libel consisted in writing and mailing a letter which is set out in full in the complaint. The defendant Lobo demurred to the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action, and thereupon he moved for judgment on the' pleadings. The motion was denied at Special Term; but on appeal this court reversed the order and granted the motion. The order entered upon the decision of this court merely reversed the order and granted the motion of the defendant who had applied for judgment on the pleadings, but without leave to the plaintiff to amend. The opinion of this court written on that appeal (154 App. Div . 520) disposed of the plaintiff’s alleged cause of action based upon the publication of the letter adversely to it, and since we did not grant leave to amend, the judgment entered upon our decision was necessarily final and upon the merits in favor of the appellant with respect to the particular libelous article pleaded. (23 Cyc. 1152; 31 id. 357; Freem. Judg. [4th ed.] § 267; *Hirshbach*v. *Ketchum,*79 App. Div. 561; *Alley*v. *Nott,*111 U. S. 472; *Kaplan*v. *Friedman Construction Co.,*148 App. Div. 14.) In the meantime the other defendant likewise demurred to the complaint and moved for judgment on the pleadings. His motion was granted; and thereupon, without further application to the court, judgment was entered dismissing the complaint upon the merits, with costs.

The motion to strike from the judgment the recital that it was *“*upon the merits” was not made until long after plaintiff’s time to appeal from the judgment had expired, and since it is plain that the judgment was upon the merits and that was shown by the judgment roll (Code Civ. Proc. § 1209; *Hirshbach*v. *Ketchum, supra; Pollak*v. *Dodge Mfg. Co.,*81 Misc. Rep. 216), of which, on appeal to the Court of Appeals, our opinion is now a part (Code Civ. Proc. § 1237, as amd. by Laws of 1913, chap. 545), and the plaintiff was not in the *3least prejudiced by the recital, it is manifest that the motion was made solely with a view to obtaining an extension of plaintiff’s time to appeal. That purpose, however, was thwarted by inserting in the order a provision that the amendment was made *nunc pro tunc*as of the date of the entry of the judgment, and without prejudice to the service of notice of the entry of judgment theretofore made.

The clerk, however, was without authority to permit the entry of the judgment in this form, for neither the order of this court nor, so far as appears, the order of the Special Term granting judgment on the pleadings on the motion of the defendant Yglesias, directed that the dismissal should be upon the merits. It is not for the clerk on entering judgment to construe the orders or decisions of the court. His function is limited to entering the judgment or order directed by the opinion, order or decision of the court, and there was no authority to incorporate in the judgment the words “upon the merits,” notwithstanding the fact that they do not change its legal effect. *(Folcarelli*v. *Ward,*132 App. Div. 316; *Card*v. *Meincke,*70 Hun, 382; *Peggo*v. *Dinan,*72 App. Div. 434; *Petrie*v. *Trustees of Hamilton College,*92 Hun, 81. See Code Civ. Proc. §§ 1203, 1222, 1223, 1236.) The plaintiff, therefore, was entitled to have those words which were erroneously inserted in the judgment stricken out, and the court is not required on such a motion to decide whether or not the judgment is, in fact, upon the merits, and is not at liberty to deny the motion if that be decided in favor of the party entering the judgment, but is required merely to decide whether the incorporation of those words in the judgment was authorized by the order or decision of the court or by any statute. The effect of the judgment must be left to depend upon the adjudication made by the court, and not upon • the construction thereof by the clerk.

It follows, therefore, that the order was properly granted and it should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.