The allowances in this case were made under the authority of section 309 of the Code; they are in addition to costs, as every allowance must be which is made under that section, and are not the allowances known in the late Court of Chancery.
The action is in part for the construction of a will. Allowances in such cases are provided for in section 308, and are excluded or excepted from the operation of section 309.
It is said that the authority to grant counsel-fees out of a common fund 'belonging to the parties to the action has been long exercised by courts of equity, and has not been interfered with by the Code.
Such a power has been recently exercised by the Court of Appeals in a similar case,† and we are not disposed to deny the justice or authority of the precedent.
The authority to grant such fees by a court of equity, in proper cases, has usually been exercised by the chancellor or judge, while he was possessed of the cause ; and was embraced in the judgment as part of the relief or equity which ought to govern its final disposition. Had the allowances in this action been so made, we should be disposed to follow the precedent of the court of last resort, and not interfere with them in this case. They were not made, however, by the justice who heard the cause, as part of the judgment which was finally pronounced.
They do not constitute any part of the equitable disposition which the court made in settling the rights of the parties, but were made by another justice, and, as before observed, under the authority of the Code only.
The order making the allowances is reversed, without costs, and without prejudice to an application to the justice who tried the cause.
Ingraham, P. J.—I concur.
EC.—Hotion to modify the judgment, and for an allowance. The plaintiffs now moved, pursuant to leave, reserved in the foregoing decision of the general term, before Hr. Justice Leonard, who had tried the cause, to modify the judgment by inserting an allowance to certain of the parties by way of indemnity for their expenses incurred in the action. A. Underhill, for the motion, relied upon the decision of the general term, and the points and authorities there presented by him. Andrew Boardman, opposed. I. The judgment in this case is enrolled and cannot be disturbed except on appeal or on a new trial granted on a proper application for that purpose, and for a cause recognized by the law as sufficient. This is not such an application, and if it were, no cause for a new trial is shown. H. This is a partition-suit and nothing else. The fact that the shares and interests of the parties had to be ascertained by construing the will through which they derived title does not alter its character. It was a mere incident like the construction of a deed or any other instrument, but if it were a suit for such construction the statute as to costs is equally applicable.- III. Section 303 of the Code prevents any allowance such as is asked for. What words could the lawmakers have used to more effectually prohibit such fees as this motion asks for. The plaintiffs ask the court to construe a statute off the statute-book. (Code, § 303.) IY. The idea that there is a fund in court under its charge which it may administer, has no foundation. To partition property among tenants in common is not a peculiar power of equity. The rights of the parties to their respective shares are legal rights. That there is any fund at all is a mere incident arising out of the property being so circumstanced as not to be conveniently capable of actual partition. The proceeds represent the shares of the parties, and no more constitute a fund in court than do the proceeds of an execution. Leonard, J.Any mistake may be amended before or after judgment. (Code, § 173.)
*166The mistakes here referred to are not judicial errors in rendering judgment; those are to be corrected in another manner.
The amendment now asked for is one that relates to the relief granted by the court at the hearing of the cause, or rather to the omission to grant the whole relief which the case would permit.
In 19 Johns., 244, the amount of the judgment was corrected after a satisfaction-piece had been filed, and a reassessment of damages was directed. It was effected, however, by opening the judgment and rehearing the case on assessment; not by an arbitrary alteration of the amount, without any authorized report or ascertaining of the sum due.
The amendment here asked for is not within the provision of the statute for that purpose.
If a judicial mistake has been made, it has sometimes been corrected by vacating the judgment and rehearing the case on the merits; as in case of surprise, newly discovered evidence, &c.
Such is not, however, the nature of the application here.
The application is denied without costs.
Present, Ingraham, P. J., Clerke and Leonard, JJ.
The case referred to is that of Phelps a. Pond, reported on another point, 23 N. Y., 69.