39 A.D. 533 | N.Y. App. Div. | 1899
"We think this order should be affirmed upon the opinion of the court at Special Term. The only advantage that the respondent seems to have derived from the stipulation was the privilege of paying to the plaintiff ten dollars costs, which was to be offset against certain costs that the plaintiff had been required to pay to the respondent as a condition for the amendment of a complaint, which was allowed by the order appealed from. It is difficult to see upon what principle this privilege of paying to the plaintiff ten dollars costs could be of any advantage to the defendant. The order, therefore, is affirmed, with ten dollars costs and disbursements.
Patterson and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.
The following is the opinion of the court at Special Term :
Of the power of the court to relieve the defendant from the stipulation withdrawing his appeal there cannot be a question. The power has been recognized and enforced in a large number of cases in this State. The only question is whether the power should be exercised in the present case. The action originally was brought in equity for an accounting against the directors of the North River Bank; on February 23, 1898, an order was entered permitting the discontinuance of the action against some of the defendants, and an amendment of the complaint as to others (including Starin) changing the action into one for tort in which about $1,000,000 damages
Order affirmed, with ten dollars costs and disbursements.