#### Benjamin Daniel, Appellant, *v.*The Brooklyn Heights Railroad Company, Respondent.

(Supreme Court, Appellate Term, First Department,

April, 1913.)

Judgments—■ Municipal Court of city of New York — assessment of damages — order vacating and setting aside — when not appealable.

In an action brought in the Municipal Court of the city of New York to recover damages for breach of a contract of carriage the judgment in defendant’s favor was reversed by *209this court. On the second trial, the plaintiff having died and the action being continued in the name of his wife for the benefit of his estate, the complaint was dismissed on the theory that the action had abated, and on appeal to this court from the judgment so entered it was reversed and on a further appeal to the Appellate Division of the Supreme Court by permission on stipulation for judgment absolute the determination of this court was affirmed. Before the damages were assessed the clerk of the Municipal Court, without any direction of the court or a judge thereof, entered a judgment in favor of defendant for $500 damages and $200.11 costs. Held, that an order vacating the alleged judgment and setting aside an entry cancelling the same was not appealable.

Appeal by plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, second district, vacating and setting aside a judgment herein.

Barnett E. Kopelman, for appellant.

Ceorge D. Yeomans (J. W. Carpenter, of counsel), for respondent.

Delany, J.

This is an appeal from an order directing the clerk to mark a certain paper entered as a judgfnent in his docket ‘ ‘ cancelled, ’ ’ and that the case in which it purported to be entered be restored to the calendar, in order that an assessment of damage maybe made. The plaintiff brought suit to recover damages for the breach of a contract of carriage. At the first trial the defendant recovered a judgment, which was reversed by this court. 121 N. Y. Supp. 577. Prior to the second trial the plaintiff died, and the action was continued in the name of his wife for the benefit of his estate. Upon the second trial the complaint was dismissed on the theory that the action had abated. From the judgment entered thereon an appeal was taken to this court and judgment reversed. 76 *210Misc. Rep. 482. The defendant thereafter obtained an order from the Appellate Division permitting it to appeal thereto on giving the usual stipulation for judgment absolute. This was done, and the Appellate Division affirmed the determination of this court. 136 N. Y. Supp. 1134. Before the damages were assessed, the clerk of the court, without any direction from the court or a judge thereof, entered a judgment against the defendant for $500 damages and $200.11 costs. A motion was made to cancel the entry and vacate and set aside the alleged judgment, and an order was thereafter made vacating and setting aside the entry, and it is from this order that the appeal is taken.

The action of the clerk in attempting to assess the damages and enter judgment was clearly without any justification either under any statute or any rule. It amounted to an assumption of power which he did not possess. It was a nullity. The entry made in the books of the court was in the nature of a clerical error. It has been held in Dalton v. Loughlin, 4 Abb. N. C. 190, that clerks are a co-operative part of the court performing the ministerial duties while the functions of the justice are judicial. In a tribunal so .constructed, the justice must make known to the clerk either orally or in writing the judgment that is to be rendered, as it is the clerk and not the justice who is, by the statute, to record the proceedings of the court; and, further, it is evidently the intention of the provisions I have referred to that the clerk and the justice should co-operate in the rendition of a judgment, each fulfilling the particular function assigned to him, that of the clerk being ministerial and that of the justice judicial. In De La Figaniere v. Jackson, 4 E. D. Smith, 479, the court said: *“*It is obvious that judgments entered by direction of a single judge must in this section include judgments entered upon the verdict of a *211jury, or otherwise no appeal whatever would lie from such judgments. They are not provided for at all unless so included. Although it is true that the clerk is directed by the Code to enter judgment according* to the verdict, yet his act is purely ministerial. That duty is made in terms subject to the direction of the judge, and is done in every practical sense under his immediate sanction.”

This entry could not constitute a judgment of the court, and the provisions of the statutes, therefore, bearing on judgments of the court did not apply to it. If the clerk had refused to remove the entry from the record, a mandamus would compel him to do so. The order appealed from was only necessary to rectify an error consisting of an entry mistakenly made in the court’s records, and it was within the authority of the justice presiding in the court to direct that the correction be made. Under subdivision 8 of section 282 of the Municipal Court Act, it is specifically stated that it shall be the duty of the clerk of the court in each district in the performance of his duties to conform to the direction of the court.

This order did not affect any substantial right of the appellant. Under such circumstances, it seems to me that the Appellate Term has no authority to review the action of the justice in making such an order regulating the incidents of the administration of the clerk’s office, and the order, therefore, is not appealable. If this were held to be otherwise, would it not be tantamount to maintaining that the Appellate Term has a right to direct how the ordinary routine business of the courts should be maintained in all the details of management?

Lehman and Gerard, JJ., concur.

Appeal dismissed, with ten dollars costs.