Opinion
December 4, 1967
Appeal by defendants from an order of the Supreme Court, Nassau County, dated June 16, 1967, which granted plaintiff's motion to clarify the judgment of specific performance in this action, entered on August 24, 1965. (The judgment was theretofore affirmed [ Marino v. Nolan, 24 A.D.2d 1005, affd. 18 N.Y.2d 627] .) Order modified, on the law, so as to provide that the contract dated January 12, 1965 is to be specifically performed by defendants on December 26, 1967, that the term of the bond and mortgage shall be 25 years from said date and that the adjustments of real estate taxes and fire insurance premiums are to be made as of said date. As so modified, order affirmed, without costs. No questions of fact were considered on this appeal. The amendments to the judgment effectuated by the order under review having to do with the self-amortization provisions of the bond and mortgage and the manner of payment of real estate taxes and insurance premiums did not affect any substantial rights of defendants (CPLR 5019, subd. [a]). The amendments merely rectified the omission of a right to which plaintiff was entitled as a matter of course and did not change or alter a decision which had been made on the merits (cf. Herpe v. Herpe, 225 N.Y. 323, 327; Bohlen v. Metropolitan El. Ry. Co., 121 N.Y. 546, 550-551). The adjustments should not be computed as of August 12, 1966. Defendants properly refused the tender of a deed by plaintiff on that date. The deed properly contained a clause subjecting it to all covenants, restrictions and utility easements of record which did not prohibit the erection and maintenance of the improvement. However, in the preceding clause, plaintiff sought to reserve to himself the right to encumber the land in futuro with easements and rights of way. The insertion of this clause was improper as it was not authorized by either the contract of sale or the judgment. Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.