Argued March 31, 1927
Decided May 3, 1927
Appeal from the Supreme Court, Appellate Division, Second Department.
Burgess Osterhout for appellants.
Max Shlivek and Saul S. Brin for respondent.
The evidence sustains a verdict that the plaintiff fulfilled the conditions of the contract for the payment of a commission, and the exceptions to the rulings upon the defendants' requests to charge do not point to any errors that call for a reversal.
The verdict was improperly amended by the addition of interest. The cause was tried at Trial Term on November 13, 1925. After this term had ended, an order was made at Special Term whereby interest was added from April 24, 1923, the date of the employment. We think the power to amend did not outlast the term at which the verdict had been rendered ( Dalrymple v. Williams, 63 N.Y. 361, 364; Hodgkins v. Mead, 119 N.Y. 166; Duerr v. Consolidated Gas Co., 104 App. Div. 465; Fremd Jenkins v. Halsted, 184 App. Div. 953).
The settled practice to that effect is founded upon considerations of the essential nature of the motion. The motion is not heard upon a case prepared and settled. It is made upon the minutes of the judge presiding at the trial, who alone is competent to pass upon it. No other judge would be in a position to know whether interest ought to be added and, if added, in what amount. In this instance, the Special Term referred the motion to the same judge who had listened to the evidence, yet this was comity and nothing more, if jurisdiction to amend survived the ending of the term. We may add that the amount added was erroneous in any event, since interest should have run, not from the date of employment, but from the date of performance, almost a year later. The jury did not depart from the instructions of the court in giving a verdict for the commission without interest, for no instructions on the subject had been given in the charge. An amendment of the verdict is in effect an incident of the trial, and the power to make it is exhausted when the term is at an end.
The judgment of the Appellate Division and that of the Trial Term should be modified by deducting from the latter judgment the sum of $769.31, and, as modified, affirmed, without costs to either party.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.