Town of Palatine v. Canajoharie Water Supply Co. , 101 N.Y.S. 810 ( 1906 )

Chester, J.:

We disagree with the contention of the appellants’ counsel that the Special Term was without power to amend the judgment under the circumstances presented here. The Court of Appeals, in affirming the judgment of this court, had settled the law of this case, that the commissioners of highways were improperly joined with their respective towns as plaintiffs in the action. If the Supreme Court, acting through a Special Term, or an Appellate Division in an appropriate case, is powerless to make the judgment of the Court of Appeals effective because of highly technical objections largely relating to procedure, there is something inherently defective in our judicial system and the right of review in many cases would be rendered fruitless and worthless'.

While we entertain no doubt of the inherent power of the Special Term to make the amendments of the judgment and of the summons and complaint which it did, we think, as the defendants had earned a considerable amount of costs in their efforts to be rid of improper plaintiffs in the action and had recovered judgments for these costs against such improper plaintiffs as well as against the towns, that the amendments should not have been made except upon condition that the towns which remain as plaintiffs should pay the defendants their taxable costs as well as the costs of the motion.

The criticism by the appellants of 'this feature of the order as made • relates to á matter of substance, as one effect of it is practically to dismiss from the action two parties against whom judgments for costs have been' obtained'without making any provision for payment of.any of the costs incurred. The: condition-we suggest'will fur- . nish ample- protection to the defendants as the towns aré response ble- and no injustice follows by imposing the costs upon them as the commissioners were only agents for the town, the-proper plaintiffs; and can with propriety be relieved from paying the costs personally;

There is no reason shown why, in addition to the costs, the counsel fees incurred by the defendants with respect to the temporary injunction should have been imposed, as a condition of granting the amendments. The question of -the liability of the towns, for damages to the defendants because of the temporary injunction can well await the determination of the action on the merits. ■ " -

Thé order' should ,be modified by-adding after the words-*44 that the. defendants recover of the plaintiffs ten dollars-costs o'f this motion the following,- “ and that said- amendments are made upon condition that the1 plaintiffs, the town of Palatine and the town of Cánajoharie, pay to the_defendants all their taxable costs in the action,-• including said •-ten . dollars . costs ■ of motion,” and - as so ’ modified affirmed, with ten dollars costs and printing disbursements. ■

All concurred,

Order modified as per opinion and as modified' affirmed, with ten dollars costs and disbursements to the appellant.