Ost v. Salmanowitz

104 N.Y.S. 849 | N.Y. App. Term. | 1907

Fitzgerald, J.

A judgment in the City Court in this case was entered and the costs taxed on February 6, 1907. Subsequently the defendants made a motion to review the taxation of costs; and, on February 13, 1907, the court made an order which, it is claimed by the respondents herein, was one “ modifying and reducing the judgment.” This order, however, does not appear in the printed papers and, therefore, cannot be considered. It may be said, however, that it is clear that the motion was one merely for a review of taxation of costs, and.not one to amend or correct the amount of a verdict given or judgment rendered. In such a case the court has no right to reduce or modify the judgment, but merely to direct that the amount disallowed, if any, be credited upon the execution. Code Civ. Pro., § 3264; Hewitt v. City Mills, 136 N. Y. 211; Baker v. Codding, 3 Misc. Rep. 512. The judgment itself remains unchanged. On February 18, 1907, the defendants filed and' served a notice of appeal reciting therein that the appeal was taken from the judgment entered on the sixth day of February, and "also from the order denying defendants’ motion for a new trial “ entered herein on the 15th day of February, 1907.” This notice of appeal was returned by the plaintiff’s attorney as not having been served in time. The defendants thereupon moved for an order compelling the plaintiff’s attorney to accept such notice, and from an order made granting defendants’ motion plaintiff appeals. It is evident that but one judgment has ever been entered in this case and that, under the facts shown herein, but one judgment could, legally have been entered. That was entered February 6, 1907. It is not - claimed that, after the order was .made disallowing a portion of the costs, another judgment based upon that order was entered, and that order should have directed the amount of costs disallowed to be applied upon the execution. That being so, a notice of appeal from the judgment, filed and served February eighteenth, was too late. Code Civ. Pro-., § 3190. The notice of appeal, however, was also from the order entered February fifteenth denying the defendants’ motion for a new trial; and, as an appeal from the order alone, was filed and served in time. The order appealed from'must be modified by directing that the plaintiff’s attorney be required to accept said notice of appeal, as an appeal from the order aforesaid, and, as modified, affirmed, without costs or disbursements to either party of this appeal.

Gildersleeve and Goff, JJ., concur.

Order modified, and, as modified, affirmed, without costs or disbursements to either party óf this appeal.