Opinion
February 14, 1949.
Present — Nolan, P.J., Carswell, Adel, Sneed and Wenzel, JJ.
In an action for the reformation of a lease, plaintiff appeals from a judgment in favor of defendant, insofar as it is based upon the "Seventh" and "Eleventh" findings of fact; and also appeals from an order, insofar as it denies its motion to resettle the findings of fact, by striking therefrom said paragraphs numbered "Seventh" and "Eleventh". Judgment, insofar as appealed from, unanimously affirmed, without costs. Order, insofar as appealed from, unanimously reversed on the law, with $10 costs and disbursements, and the motion granted, without costs, to the extent that the findings of fact are resettled by striking therefrom the findings numbered "Seventh" and "Eleventh", which are immaterial to the issues presented by the pleadings, and which decided questions not at issue. (Cf. Loeb v. Clement, 243 App. Div. 834.) The trial court had power, subsequent to judgment, to amend its decision by striking therefrom such findings, since the amendment would not have been inconsistent with, nor would it affect the validity of, any findings or conclusions on which the judgment rested. ( S.J.E. Bldg. Corp. v. Matt O.M. Constr. Co., 265 N.Y. 282, 286; Rosen v. Weinstein, 243 App. Div.. 726.) Appellant's motion for such relief was improperly denied.