tions, he should give the unsuccessful party notice of settlement, so that the latter may have opportunity to be heard before the court or judge as to the contents of the order. 35

In cases where no controversy is apprehended, it is usual for the party drawing the order to submit a copy to his adversary, so that, if he have no amendment to propose, he may subscribe his consent to the form of the order, upon which it may be submitted at once to the judge for authentication.

Otherwise a copy of the proposed order should be served with notice of the time and place when it will be presented for settlement.36

Where the judge has rendered and filed a written decision, an order which conforms to the decision, and does not involve such special clauses that the party had a right to be heard, may be sustained, although entered without settlement by the judge; but if it contains anything more, even an award of costs of motion, such provision should be struck out on motion, and the party entering the order put to a fresh motion to vacate his own order and have the question passed upon and a fresh order made.37 But the judge on settlement of an order may inodify or add to the decision as announced by him.38

68. Entry nunc pro tunc.]- In addition to what has already been said of the date of an order, it is only necessary to add here that the court cannot by the fiction of entering an order nunc pro tunc deprive a party of a substantial right. Some confusion exists in the cases on this point, because the question is not whether the words of the amendment or order entered nunc pro tunc affect a substantial right, but whether the consequence of allowing it will be to do so. The defect or delay to be cured is one thing: the question whether a substantial right is affected may be quite another. Thus if a purchaser in partition objects to title because a necessary party was omitted, bringing in that party and entering judgment against him affects a substantial right of the party; but since it does not affect a substantial right of the purchaser,

35 Whitney v. Belden, 4 Paige, 140.

36 See local rules of practice.

37 Siegrist v. Holloway, 7 Civ. Pro. Rep. (Browne), 58, holding it error to sanction the allowance of costs so as to defeat the motion to strike out that clause.

38 Post v. Cobb, 28 Wkly. Dig. 362, 13 St. Rep. 555.

if accomplished without too great delay, the court may order this substantial amendment to be made nunc pro tunc, so as to bind the purchaser. On the other hand, if, for instance, it is sought to charge a party personally upon a judgment entered on service by publication, and it appears that the order for publication was made by the court instead of by the judge, this defect, technical though it be, cannot be amended by entering a fresh order nunc pro tunc, because its purpose is to make a void judgment valid, which is against a substantial right of the defendant.39

69. Docketing.]- An order for payment of money, or affecting the title to real property, made on petition, as distinguished from an action, may be enrolled and docketed like a judgment.40

70. Notice of an order; and service.]— Notice of the existence of an order, for the purpose of making it bind the adverse party, and enabling the party obtaining it to enforce it by proceedings for contempt, is not necessarily sufficient for the purpose of limiting the time to appeal from it. These three purposes call for lifferent tests. The question who must watch for a decision and take notice of it has been already considered.11 The proper mode of service to bring the other party into contempt is explained in connection with SERVICE and CONTEMPT.

The requisite notice of entry to limit the time to appeal is a written notice proceeding from and signed by the attorney for the successful party, given after actual entry, and on service of a copy of the order as entered, and must state, or, if indorsed on or annexed to the copy served with it, must, when read in connection therewith, show where it is entered; it is subject to the severest tests as to its sufficiency and accuracy.

42

39 Compare on this subject, Guarantee Trust Co. v. Phila., etc., R. R. Co., 160 N. Y. 1; Wilcox v. Nat. Shoe & Leather Bank, 67 App. Div. 466, 73 N. Y. Supp. 900; Elliott v. Plattor, 43 Ohio St. 198, 1 West. Rep. 25, and Tompkins v. Clackamas Co. (Oreg. 1884), 4 Pac. Rep. 1210; Sage v. Central R. R. Co. 93 U. S. 412; Rodd v. Heartt, 17 Wall. 355; Matter of Livingston's Petition, 34 N. Y. 555, 2 Abb. Pr. (N. S.) 1, 32 How Pr. 20.

40 N. Y. Gen. Rule No. 27. This rule does not permit the docketing as a judgment of a final order, fixing on petition the value of an attorney's services. Myer v. Abbett, 20 App. Div. 390, 46 N. Y. Supp. 822. See article on PETITIONS.

41 See paragraph 167, p. 156, and cases cited.

42 See Form 134, post; Good v. Deland, 119 N. Y. 153; Guarantee Trust Co. r. Phila., etc., R. Co., 160 N. Y. 1; Tudor v. Ebner, 109 App. Div. 521, 96 N. Y. Supp. 392; Weeks v. Coe, 36 App. Div. 339, 55 N. Y. Supp. 263; Mason v. Corbin, 29 App. Div. 602, 51 N. Y. Supp. 178; Curtis v. Ritzman, 7 Misc.

71. Correcting error in service.]—To correct an error in the service of papers, proper service should immediately be made, with request to the adverse party to allow the mistake to be thus corrected. If consent is refused, or if he has proceeded as if in default of service, the court have power to relieve the party from his slip, upon terms,13 unless, as in the case of a service necessary to be made within the time limited by law to take an appeal, the count have no power directly or indirectly to extend the time."

VII. MODE OF MODIFYING AN ORDER.

72. Resettlement.] If the order made does not conform to the proceedings on the motion or the decision made, the appropriate method of correcting the error is to move to resettle.45 A motion to resettle must be made before the judge whose decision it is sought to express; but if this be impracticable the court have power to resettle for that purpose.

46

A resettlement of an order once entered is usually made by a fresh order, which either contains a direction amending the terms of the original, or, as is the better practice, reciting at length the order as resettled.

In either case the resettlement is a fresh order, which should be served with notice of entry, if it be a court order, in order to limit the time to appeal.47

73. Amending.]- The court have power to amend an order, even after it has been passed and entered, so as to make the record

400, 27 N. Y. Supp. 971; Livingston v. N. Y. El. Ry. Co., 60 Hun, 473, 15 N. Y. Supp. 191. The construction is quite as strict, also, in determining whether the copy of the judgment or order served is an exact copy.

43 N. Y. Code Civ. Pro., § 783.

44 Id., § 784.

45 Correcting recitals so as to include omitted papers, see Thous. Isl. Park v. Gridley, 25 App. Div. 499, 49 N. Y. Supp. 722; Farmers' Nat. Bank v. Underwood, 12 App. Div. 269, 42 N. Y. Supp. 500. Correcting recitals, see Mooney v. Ryerson, 8 N. Y. Civ. Pro. Rep. 435. Correcting directions of order. Cowen v. Ferguson, 7 N. Y. St. Rep. 403.

If the order entered upon a default contains improper recitals or provisions, the aggrieved party should move to resettle. Matter of Radam Microbe Killer Co., 114 App. Div. 199.

46 Changes in the recitals should be made only by the judge who made the original order. Dinkelspiel v. Levy, 12 Hun, 130.

An application cannot be made to the appellate court to resettle the order, although an appeal is pending therein. Koeppel v. Koeppel, 48 Misc. 358, 95 N. Y. Supp. 812.

47 And a resettlement cannot be allowed after the time to appeal from the original order has expired. Stierle v. Union Ry. Co., 11 Misc. 124, 31 N. Y. Supp. 1008.

But after the entry of an

truly contain what was adjudged. 48 order sanctioned by the judge, the court or judge cannot alter its provisions by an order made upon his own motion and without notice to the party whose rights are to be affected thereby.49 The statutory power of the court to amend a mistake, etc., of the clerk extends to a mistaken entry made by the clerk in consequence of the mistake of the judge.50

74. Modifying date.]- The power to amend or resettle an order, or to enter nunc pro tunc, does not extend to sanction altering the date of an order, whether by correction or re-entry, for the purpose of giving a right to appeal, when the statute time to appeal has passed.51 Where a party dies after argument and before decision, the order may be made to bear date. as of the day when the motion was submitted, or of any subsequent day prior to such death; and if this is omitted, the court may permit the record to be corrected, upon a motion made upon notice, by changing the date of the order to a day prior to the death of the party.52

75. Varying order granted by consent.]— An order by consent cannot be modified or varied, in an essential part, without the assent of both parties to such order.53 The court, however, upon application, may give such further directions as are necessary to carry such order into effect, according to its spirit and

48 See note to paragraph 19, p. 75. It seems that a court of record has power, on notice, to vacate, correct, or to reform its own order, inadvertently made, and to substitute a proper order for an improper one, even though the substituted order may incidentally alter or reverse the advantage or benefit which strangers had gained by reason of the order inadvertently made. American Hosiery Co. v. Riley, 12 Abb. N. C. 329. A court cannot, however, under guise of an amendment pass decision upon a question that was not actually presented to it, or as to which no ruling was made. See Guarantee Trust Co. v. Phila., etc., R. Co., 160 N. Y. 1; Wingrove v. Germ. Sav. Bank, 2 App. Div. 479, 37 N. Y. Supp. 1092; Siegrist v. Halloway, 7 Civ. Pro. Rep. 58.

49 Simmons v. Simmons, 32 Hun, 551.

50 Elliott v. Plattor, 43 Ohio St. 198, 1 West. Rep. 25.

51 Stierle v. Union Ry. Co., 11 Misc. 124, 31 N. Y. Supp. 1008; United States

. Gomez, 1 Wall. 690; Matter of Beckwith, 87 N. Y. 503.

52 Matter of Beckwith, 87 N. Y. 503; Carter v. Beckwith, 82 N. Y. 83. (So held, affirming an order directing a change in the date of an order to be made as of a date prior to the death, and prior to the decision, but subsequent to the argument, in a case where the decision was after the death.)

53 Leitch v. Cumpston, 4 Paige, 476. So held, denying motion to compel referee to receive evidence to show mistakes in the schedules, under an order stipulating that they were correct.

intent.54

If it is sought to go beyond this, application should be made to relieve the party from the consent.55

VIII. GETTING RID OF AN ORDER.

57

76. Disregarding.]—It has already been explained 56 that an order granted by a court or judge having jurisdiction and power to make such an order, is not void though it be irregular, and the party must either obey the order or have it set aside. If an order be irregular, the party aggrieved should, with reasonable promptness, apply to vacate it, but meanwhile should respect the direction.

59

58

An order does not bind a person in no way made a party nor privy to the proceeding, but when an action or proceeding is pending, the court have power (within limits not very well defined) to bring in by order to show cause a person who is not a party to the record, when necessary for the purpose of properly disposing of an incidental question arising on motion or petition, or for the purpose of enforcing an order or punishing for contempt.61

54 Id.

55 See STIPULATIONS, post.

56 See MOTIONS, paragraphs 27, 36, 56, 78, 84, and 87.

57 Arctic Fire Ins. Co. v. Hicks, 7 Abb. Pr. 204.

58 Osgood v. Joslin, 3 Paige, 195.

"I am not aware of any principle," said CowEN, J., "which authorizes a party to treat an order as a nonentity, merely because a commissioner is forbidden to grant it, or a party is forbidden to apply for it. It may be said of every order improvidently granted, that the party and officer have done what the law has forbidden. To say that it has been fraudulently and collusively obtained is no more. But to allow, as a consequence, that it may therefore be disregarded, would be letting in a principle under which every judicial act might be questioned collaterally. The remedy is by direct proceeding, which, in the case of orders, is revocation, appeal, motion to supersede, etc." Gould v. Root, 4 Hill, 554.

Otherwise if the officer had no jurisdiction. Spencer v. Barber, 5 id. 568. An order which is not absolutely void for want of jurisdiction in the court granting it must be obeyed, and a violation is not justified by the fact that it was in good faith, under advice that the order was void; even when the order was erroneous, and granted without sufficient cause. People ex rel. Roosevelt . Edson, 51 N. Y. Super. Ct. 238. This decision was reversed in 1 How. Pr. (N. S.) 482, on the ground that the injunction in this case was void because granted by a judge of the Common Pleas.

Chamber order which is entirely unauthorized, a nullity. Hunt v. Wallis, 6 Paige, 371.

And see the cases cited in notes to the various paragraphs referred to in the note next preceding but one.

59 Clark's Case, 15 Abb. Pr. 227; Marty v. Marty, 66 App. Div. 527, 73 N. Y. Supp. 369.

Go Acker v. Ledyard, 8 Barb. 514; reversed in 8 N. Y. 62, on the ground that the order was not conclusive on such a person.

61 See CONTEMPT.