(dissenting):
Carpenter was the assignee of H. & H. under a general assignment for the payment of their debts. After he had taken possession of the assigned property, Rockwell and others brought the action first above entitled against him in replevin for certain prop*534erty. Carpenter retained the same by giving the requisite bond. Some months after, Peters, who had been appointed the receiver of the property of H. & EL, brought the action secondly above entitled against Carpenter and EL & H., to set aside the assignment as fraudulent. Both actions were tried before Mr. Justice Landon and both were decided March 5,1881. Judgment in the first action was rendered against Carpenter for $334.50 damages and costs, and in the second action for $2,196.17 damages and costs. On the 19th of April, 1881, Mr. Justice Landon corrected the latter judgment by reducing the assets in Carpenter’s hands to be accounted for and paid over to the receiver, so far as was right and proper by reason of the judgment recovered by Rockwell against Carpenter to be paid out of the same assets. A further reduction was also made for expenses incurred by Carpenter as assignee after the assignment and before the commencement of the second action. The evidence upon the trial was in part the same in both actions and both related to the same assigned property. This correction was made because the judge recalled the facts and saw that by inadvertence he had omitted to make the proper credits to the defendant Carpenter, due to him when the two cases were decided. The evidence upon the trial is not returned to us. By this amendment the moneys going into the hands of the receiver are not sufficient to satisfy in full the judgments represented by him, and therefore he appeals from the order modifying the judgment.
There are no facts to justify this court in reversing this order as a matter of discretion if we have that power. (Butler v. Niles, 28 How., 181.) The Rockwell judgment is plainly entitled to be paid out of the assigned property in preference to the receiver’s judgment. That fact was patent to the judge who tried both cases at the same time. Nothing but inadvertence caused the judge to omit to make such deduction before stating the amount which the receiver should recover. Carpenter was also allowed the amount of his expenses incurred before the receiver’s action was begun. These allowances were proper in themselves, and were, in the discretion of the court, based upon facts within its knowledge from the proceedings and evidence in the case.
The real question to decide is, whether the court at Special Term, on motion, had thepower to correct the judgment roll as was done, *535the judge who directed the judgment and made the order being the same, and the correction made being founded upon a mistake and omission made by the judge himself in directing judgment.
Every court, it is believed, has inherent power to correct mistakes, irregularities or omissions due to its inadvertence or the neglect or carelessness of its officers, whenever it is in furtherance of justice and the rights of third parties are not affected thereby. Each case, however, must to some extent be left to the sound judgment of the court, as says Lord Kenton in King v. Mayor, etc. (7 T. R., 699). The question is discussed and cases reviewed in note to Chichester v. Cande (3 Cow., 42). In Mechanics'' Bank v. Minthorne (19 J. R., 244) the satisfaction of a judgment was set aside and the damages reassessed, to correct a mistake made by the clerk in the computation of interest, the court saying: “We have no doubt of our power to set aside the satisfaction entered, as well where there is a clear mistake as in a case of fraud.” To the same effect is Lawrence v. Cornell (4 Johns. Ch., 545.) In Pettigrew v. Mayor, etc. (17 How., 493) it is said, “ a mutual and fundamental mistake of the very basis of the contract” on. which the judgment was recovered “ is ample ground for relief,” and no doubt of the power of the court was entertained. Levy v. Joyce (1 Bosw., 622) has some points of similarity to the one at bar. The mode in which relief from a judgment in case of mistake or excusable default may be obtained is in the discretion of the court. (McCall v. McCall, 54 N. Y., 541.) The powers of the court exist, over and beyond the Code, which will be exercised in proper cases. (Dinsmore v. Adams, 49 How., 238.) Totally defective judgments have often been amended nunc pro tuno, as to mistakes of officers of the court. (Neele v. Berryhill, 4 How., 16; Cook v. Whipple, 55 N. Y., 151, 166, and cases cited.) Matters which would have been inserted as a matter of course, if attention to them had been asked at the hearing, inay be corrected on motion. (Clark v. Hall, 7 Paige, 383.) In Kamp v. Kamp (59 N. Y., 215-220) Judges Allen and Grover say jurisdiction ends with a final judgment, “except * * * to correct any mistakes in the record, upon proper application made within a reasonable time.” The court by which a judgment is pronounced may correct or modify it. (N. Y. Ice Co. v. N. W. Ins. Co., 23 id., 357, 361.)
*536In the case of McLean v. Stewart (14 Hun. 472) the change made in the judgment was not justified by any evidence given upon the trial, nor did the judge make any mistake or omission in «respect to the facts and law found by him on such evidence when he decided the case. In that respect it is very different from the case in hand, where the judge certifies that he made a mistake in rendering his decision. But McLean v. Stewart recognizes Mechanics' Bank v. Minthorne (supra) as authority.
The courts have frequently held that the granting or refusing costs in equity cases will not be corrected, on motion, as a mistake, because if the judgment be wrong in that respect it is a judicial mistake and must be corrected, if at all, upon appeal. Of course no decision holds that a judicial mistake can be corrected by motion or petition before the same or another judge. The present is not a judicial mistake. Not being a judicial mistake it may be corrected by the inherent power possessed by the court, or, as I think, by the power conferred by sections 723, 724 of the Code of Civil Procedure. (Sec. 173 of Code of Pro.; Hotaling v. Marsh, 14 Abb., 161, 165.)
Upon a careful study of the cases we are of the opinion that the court possessed the power to make the amendment complained of, and that there is nothing in the facts presented for our consideration which would justify this court in interfering with the discretion so exercised.
We think the order should be affirmed, with ten dollars costs and printing disbursements.
Present — Learned, P. J\, Boardman and Bocees, JJ.Order reversed, without costs.