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.
The amendment sought by defendants related to an error of form and not to a matter of substance. It was, therefore, proper to amend and not to appeal from the judgment. ( Simmons v. Craig, 137 N.Y. 550.) Lazansky, P.J., Young, Carswell, Scudder and Tompkins, JJ., concur.
If it is incorrect in form or did not represent the true result of the trial, any party aggrieved must move to correct it at Special Term. ( Simmons v. Craig, 137 N.Y. 550.) The motion to modify was denied on the ground that as the contract was made a part of the judgment there was no power to modify it.
The allegation of the petition as to such matters must, therefore, be taken as true. People ex rel. Carleton v. Board of Assessors of the City of New York, 7 Hun, 228; People ex rel. Harriman v. Paton, 20 Abb. N.C. 195; People ex rel. Annibal v. Board of Supervisors, 53 Hun, 254; Matter of Sullivan, 55 id. 285, 287; Simmons v. Craig, 137 N.Y. 550. So far, however, as the averments in the answering affidavits are positive in form they must be taken as true, inasmuch as this application is for a peremptory writ; and such writ is still demanded, notwithstanding the affidavits filed by respondents.