The propriety of a part of a judgment in two actions is here involved. I need not pause to set out in detail the relationships between the plaintiffs and the various parties defendant. The actions were brought by the Lexington and Fortieth Corporation as owner of a fifteen-story brick building located at the southeast corner of Lexington avenue and East Fortieth street in New York city, and The Hotel Concord, Inc., as lessee of at least the ground floor of the building, to compel the defendants immediately to restore that part of the building leased by the defendant Cornelius Callaghan under a lease dated July 1, 1926, and expiring October 31, 1945, to the condition it was in immediately prior to the time alterations were made. The trial court found that the defendants had put a plaster front and back on the premises which they leased "without plaintiffs' knowledge, acquiescence, consent or permission, expressed or implied in any form whatever," that the changes cheapened the character and appearance of the hotel and constituted waste and were injurious to plaintiffs. The lease contained a provision that the frontage of the premises could not be altered except upon plaintiffs' written consent. The court found that this covenant had been violated by defendants. Decision was rendered against defendants Cornelius Callaghan, Catherine Callaghan and Lexington Avenue 40th Street, Inc., in plaintiffs' favor.
A judgment designed to carry out the findings and decision was submitted by the plaintiffs to the trial justice, but he added the following provision to the proposed judgment: *Page 533 "* * * provided nevertheless that in lieu of such immediate removal and restoration, the said defendants, within ten days after service of a copy of this order and notice of entry, may post in escrow with the attorney for the plaintiffs a good and sufficient bond in the penalty of $2,500 conditioned upon restoration of the premises, at the expiration of its lease to their original state." The plaintiffs moved to amend and correct the judgment by eliminating the provision inserted by the court, on the ground that it was improper in form and not in conformity with the court's opinion and decision or based on the pleadings. That motion was denied and plaintiffs appealed to the Appellate Division from the order as well as from the judgment of the court in so far as it adjudged that the defendants might post a bond conditioned upon the restoration of the premises at the expiration of the lease. The Appellate Division unanimously affirmed.
Although the decision of the court was in form in favor of the plaintiffs, the provision above quoted nullified its effect. Under the terms of the lease, express consent in writing was required before alterations could be made, and since the court found that the alterations had not been consented to, constituted waste and were injurious to plaintiffs, the plaintiffs were entitled to have them removed immediately and were not required to wait until the expiration of their lease in 1945. The plaintiffs were entitled to the judgment in the form submitted without the addition of the part complained of (Agate v.Lowenbein, 57 N.Y. 604).
It was said in Simmons v. Craig (137 N.Y. 550) that if the judgment entered in an action is not in conformity to the decision, the party aggrieved should object thereto and then make a motion to correct it, and if the motion is denied he may appeal, in a proper case, even to this court for its correction. This is what the appellants have done in this case. InGoldstein v. Schick (237 App. Div. 905; affd., 262 N.Y. 697) the Special Term denied the motion to amend the judgment, but the Appellate Division reversed and granted it. This court held that this was proper. *Page 534
The judgments should be reversed and the matter remitted to Special Term to enter judgments upon the findings in accordance with this memorandum, with costs in all courts.
CRANE, Ch. J., HUBBS, LOUGHRAN and FINCH, JJ., concur with LEHMAN, J.; RIPPEY, J., dissents in opinion; O'BRIEN, J., taking no part.
Judgment accordingly.