While I concur in most of the views expressed by Justice Hollister in the foregoing opinion, I feel it my duty to dissent from the opinion on some of the questions involved.
The order entered by the court below, nunc pro tunc, was, in my opinion, just such an order as was warranted by the facts in the case. It is a well-established principle, that a court has complete control of its records in a cause until a final determination thereof, and that the court has full and complete power to make the record conform to the facts during the progress of the trial or proceedings. The *520record is no part of tbe action of tbe court, but only tbe evidence of sucb action, and wben parties to a suit understand wbat tbe action of tbe court is, and are controlled by it, it is then too late to object that tbe record fails to show tbat a certain fact existed, wben they do not deny its existence, but, on tbe other band, acted in accordance with tbe direction of tbe court, before discovering tbat tbe evidence of sucb direction was wanting.
In this case it is not contended tbat tbe record of tbe order nunc pro tunc falsifies tbe facts, but tbat, as tbe record did not show the authority of tbe referee to find the facts and conclusions of law, but simply to take the proofs, he bad no right to go farther than tbe record warranted. Tbe record shows tbat tbe defendant recognized tbe right of tbe referee, to make findings of fact and conclusions of law from the proofs; for, by bis attorneys, be appeared before tbe referee and argued tbe case without ever raising any objection to tbe authority of tbe referee to find tbe facts and law from tbe proofs, and it was only wben tbe referee bad reported against him tbat be objected. If, however, tbe referee transcended his authority by going too far, did not tbe defendant, by appearing before tbe referee and arguing tbe case, thereby consent to tbe referee deducing tbe facts and law from tbe proofs ? It is not a jurisdictional question for tbe court, aside from doing wbat it in fact did do, bad an undoubted right to do.
Tbe defendant did not, and did not in the court below, claim tbat be was taken by surprise, or tbat tbe referee, in point of fact, was not, by order of tbe court, authorized to do just wbat be did. After the defendant had proceeded in tbe case, as though tbe record showed tbe authority of the referee to do all be did do, did not tbe defendant by tbat action cure tbe record, even without any order of court nunc pro tunc ? I think be did, and tbat sucb assent was as binding on him as if be bad agreed, in writing, to tbe reference under section 182 of tbe civil practice act. Did not the defendant, by bis objection to tbe report, attempt, not only to vitiate wbat be himself had consented to and helped to bring about, but also to annul an order of court. *521which in fact, and which he did not deny, had been made, but which by a mere inadvertence had not been entered by the clerk. It seems to me that the defendant was doubly bound by the report, so far as the authority of the referee went, to» do that which was objected to.
Another point upon which I feel impelled to differ from the opinion, is the question of interest. The defendant in this case was the book-keeper of the firm as well as a partner of the plaintiff, and as such was intrusted with the receiving and disbursing of all the moneys of the firm. The account between plaintiff and defendant was not an open, mutual, and current account, where each was presumed to keep his own account, and one in which it was necessary for the parties to come together- and have a full and complete settlement, in order to determine the balance between them. The amount due the plaintiff depended entirely upon the books kept by the defendant, and he knew, or must be presumed to have known, when the active operations of the firm ceased, what amount was due his partner; and it being his duty to pay over such an amount as was due, he ought, I think, to be made toypay interest thereon.
It appears that there was a large amount due the respondent, at the time when the active operations of the firm ceased, and this too, from the books kept by the appellant, which must be regarded as his own admission of that fact. What settlement then was necessary? The defendant admitted in writing that there was a large amount due the plaintiff, and although he denied in the suit that any amount was due, the court found that his own books admitted it, and gave a decree accordingly.
This case is not similar to one in which there are transactions between two persons not united in business, and each of whom is presumed to keep an account of the transactions, and in which it would be necessary to compare books and accounts with one another, but a case in which it is conceded that one individual member of the firm was intrusted with keeping all the accounts and money, and who could know at any time the state of the business and the amount due each partner.
*522The money received by the defendant was not a loan from the plaintiff, as in ordinary transactions between individuals, but simply money received by him in a fiduciary capacity, and a failure on his part to pay the plaintiff his share was a conversion of the plaintiff’s money to his, the defendant’s, own use. I have yet to find a single case in which the wrongful conversion of money or property has not subjected the wrong-doer to pay for his wrongful act. The case of Reid v. Rensselaer Glass Factory, 3 Cow. 436, bears upon this case.
There is still another point upon which I can not agree with my learned associate, and that is, as to the reversal of the judgment below. I do not think that because the court below gave too large an amount, the judgment should be reversed.
Section 293 of the civil practice act provides that “upon an appeal from a final judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from.” If the judgment of the court below was too large to the amount of the interest which the court allowed, then it is certainly a proper ease for modification, and the judgment should not be reversed, but modified.