39 N.Y.S. 1001 | N.Y. App. Div. | 1896
The order appealed from was not made by the same judge who tried the cause. It amended an order of the trial judge granting an extra allowance and also the judgment roll by striking therefrom certain recitals as to admissions made upon the trial. The question as to whether these recitals were correct or not could best be determined by the judge before whom the action was tried, inasmuch as he was still on the bench ;• and, in the exercise of a sound discretion, an application of this kind should not be entertained under such circumstances by another judge having no personal knowledge as to what actually occurred upon the trial and compelled to depend upon the conflicting affidavits of interested attorneys. ■ It would be different if the trial judge were no longer capable of acting in the case, for then the application would necessarily have to be made before some one else.
Order reversed, with ten dollars costs and disbursements.
All concurred, except Pratt, J., not sitting.
Order reversed, with ten dollars costs and disbursements.
