#### PETRIE v. TRUSTEES OF HAMILTON COLLEGE.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Judgment—Correction—Unauthorized Provisions.

Where a referee decides that a complaint should be dismissed, without stating that the dismissal should be on the merits, and defendant, to avail himself of Code Civ. Proc. § 1209, providing that a judgment dismissing a complaint shall not prevent a new action for the same cause; unless the judgment expressly declares that it was rendered on the merits, or it so appeal's from the judgment roll, enters judgment disl missing the complaint “on the merits,” the words “on the merits” may be stricken out on plaintiff’s motion, or the judgment may be vacated.

3. Same—Sending Case Back to Referee.

The court cannot, on vacating such a judgment, send the case back to the referee for decision as to whether the dismissal should be on the merits, where a clear necessity for such decision does not appear from the motion papers.

Appeal from special term, Onondaga county.

Action by Jerome R. Petrie against the trustees of Hamilton College. Defendants entered judgment dismissing the complaint on" the merits, and from the order vacating the same they appeal.

Modified.

The order contained the following provision: “Ordered, that the judgment entered and docketed in this action on the 29th day of May, 1895, be, and the same hereby is, vacated and set aside, and that this cause be, and the same hereby is, referred back to said referee William Kernan; Esq., with leave to further report, or to change his decision or direction for judgment and conclusion of law so that the same shall express his precise and full intention with reference to dismissing the complaint upon the merits, or not upon the merits, but without prejudice to a re-entry of judgment upon the corrected report, to the same force and effect as if no judgment had heretofore been entered herein.”

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ:

C. D. & S. C. Adams, for appellants.

L. M. Martin, for respondent.

HARDIN, P. J.

May 29, 1895, the referee made a report, in which is found the following language:

> *637“Upon the evidence given upon the trial, I find and decide that the plaintiff has failed to make out and maintain his alleged grounds and causes of action, or either of them, and that his complaint should be dismissed. * * * I therefore decide that the complaint of the plaintiff should be dismissed without costs, and judgment is ordered accordingly.”

On the same day the defendants entered a judgment which contained the following language:

> “It is adjudged that the plaintiff’s complaint in this action be, and the same hereby is, dismissed on the merits, without costs.”

Evidently, it was the intention of the defendants, when they inserted in the judgment the words “on the merits,” to avail of the provision found in section 1209 of the Code of Civil Procedure. That section declares that a judgment dismissing the complaint “does not prevent a new action for the same cause of action, unless it expressly declares or it appears by the judgment roll that it was rendered upon the merits.” If those words had been allowed to remain in the judgment, no question or doubt would remain as to the force and effect to be given to the judgment, as it was made to expressly declare, by the language used therein, that the judgment was “on the merits.” It seems section 1209 was adopted for the purpose of applying the common-law rule to equitable actions. Wheeler v. Ruckman, 51 N. Y. 391. By an inspection of the complaint, it is clear that this was an equitable action, in which the plaintiff sought equitable relief. Inasmuch as those words were not found in the report of the referee, there was no warrant for their insertion in the judgment, and it was therefore the right of the plaintiff to have those words stricken from the judgment, or the judgment vacated, to the end that the judgment should conform to •Hip fipniFsion of fhp Tpfprpp

In Card v. Meincke, 70 Hun, 382, 24 N. Y. Supp. 375, it was held:

> “The clerk can only enter a judgment as directed by the decision filed, or upon a subsequent approval by the trial judge of the judgment proposed to be entered. Where the decision is simply that judgment be entered in favor of defendants, and against plaintiff, an entry of judgment dismissing the complaint ‘upon the merits’ is erroneous.”

In that case a motion was made to amend the judgment by striking out the words “upon the merits.” In the course of the opinion delivered, it was said:

> “In the case at bar the decision filed contained no such explicit directions, and certainly did not state that any judgment should be entered dismissing the complaint in this action on the merits, whatever might have been the intention of the learned judge who tried the cause. We think, therefore, that the motion should have been granted, striking out from the judgment the words ‘upon the merits.’ ”

See, also, Freeman v. Light Co., 59 Hun, 341, 13 N. Y. Supp. 93.

Doubtless, in the case before us, the special term might have eliminated from the judgment the words “on the merits.” It, however, had power to vacate and set aside the judgment.

The power of the court over its own judgments, “and its habit to exercise it,” were fully declared in Hatch v. Bank, 78 N. Y. 487. In the course of the opinion in that case it was said:

> *638“It is an inherent power, and not limited in matters of substance by the sections of the Code.”

This court followed the doctrine of that case in Underwood v. Sutcliffe, 21 Hun, 357, as will appear to have been explicitly stated by reference to the opinion of Talcott, P. J. The power was again declared in Kiefer v. Railway Co. (Sup.) 8 N. Y. Supp. 230, and again in Ladd v. Stevenson, 112 N. Y. 325, 19 N. E. 842. It is correct practice, where a judgment upon a referee’s report is incorrect under it, to apply by a motion to have the judgment corrected. Decker v. Decker, 108 N. Y. 128, 15 N. E. 307; People v. Goff, 52 N. Y. 434; Kenney v. Apgar, 93 N. Y. 539.

We must now consider the second branch of the order, which requires the cause to be referred back to the referee, with leave to further report, or to change his decision or direction for judgment and conclusion of law, so that the same shall express his precise or full intention with reference to dismissing the complaint upon the merits, or not upon the merits.

In McLean v. Stewart, 14 Hun, 472, this court held that, after a decision had been made and filed in a cause, a subsequent special term had no power to alter the judgment upon motion as to matters relating to the merits, and that such a change could only be made after a rehearing before the trial judge upon the case being sent back to him, or after a review by an appellate court. That case has been referred to with approval in Rockwell v. Carpenter, 25 Hun, 532; and in Rosa v. Jenkins, 31 Hun, 384; and in Jones v. Jones, 71 Hun, 524, 24 N. Y. Supp. 1031. The practice of sending a case back to a referee for further findings has, in certain cases, been upheld.

In Wright v. Sanders, 28 How. Prac. 395, the referee was ordered, “upon the proofs and allegations already made and taken before him,” to malte a new report, stating all the material facts found by him, with his conclusions of law separately. That practice seems to have been approved in Carroll v. Railway Co., 65 Barb. 33, and in Rogers v. Wheeler, 52 N. Y. 262.

In McLean v. Stewart, supra, in the course of the opinion, it was intimated that, where changes are sought upon a special motion relating to the merits, they “should be allowed only after a rehearing before the trial j udge upon the case being sent back to him.” It is to be observed that the order appealed! from does not provide an opportunity for the parties to again be heard before the referee. Again, it appears that on the 10th of June, 1895, plaintiff served exceptions to the referee’s report; and, on the 14th of June, a notice of appeal from the judgment was served, and an undertaking, and the plaintiff commenced preparing a case to be used in connection with the appeal.

In Gardiner v. Schwab, 34 Hun, 582, it was held that the “report of a referee cannot be sent back to him with instructions to make additional findings of facts or conclusions of law.”

In Bank v. Levy, 41 Hun, 461, the court followed Gardiner v. Schwab, supra; and, in the course of the opinion, Landon, J., said:

> *639“We think the practice of sending a report back to the referee to supply alleged omissions ought not to be encouraged; and, if allowed in any case, it should be only to supply some merely technical or clerical omission; not to reinvest that officer with judicial functions touching the case theretofore submitted for his decision. The necessity and propriety of such action should be clear.”

In accordance with that doctrine, we are inclined to say that that part of the order which referred the case back to the referee should fall. No clear necessity for it was presented by the motion papers. Heath v. Banking Co., 146 N. Y. 260, 40 N. E. 770. Besides, the plaintiff had taken an appeal from the judgment, and had filed exceptions to the referee’s report before the motion was noticed, requiring a further decision from the referee.

We think the order appealed from should be modified by striking therefrom so much as refers the cause back to the referee, with leave to further report, or to change his decision or direction for judgment and conclusion of law, so that the same shall express his precise or full intention with reference to dismissing the complaint upon the merits, or not upon the merits, and, as so modified, should be affirmed, without costs of the appeal to either party.

Order modified in accordance with the views stated in the opinion, and, as modified, affirmed, without costs to either party. All concur.