Smith v. Smith

106 N.Y.S. 137 | N.Y. App. Div. | 1907

Miller, J.:

This appeal involves a question of costs in a partition suit. The case was tried before the late Justice Wilmot M. Smith, who made a decision containing findings of fact and conclusions of law in which the rights of the respective parties were stated, and a judgment was directed for actual partition, with costs to the plaintiff. Upon this au interlocutory judgment was entered which provided that the plaintiff should have costs and disbursements to be taxed by the clerk. The order appealed from amends this interlocutory judgment so as to award costs to the defendants as well as the plaintiff.

Section 1022 of the Code of Civil Procedure ¡provides: “ In an action where the costs are in the discretion of the court the decision or report must award or deny costs, and if it awards costs it must designate the party to whom the costs to he taxed are awarded.”

The only interlocutory judgment that could be entered was the one directed by the decision. While the court would have power to correct an error in the entry of judgment it eonld not change the decision or authorize the entry of a judgment differing from the one directed by the decision.

For these reasons the order must- be reversed and the. motion denied. ‘

Hirschberg, P. J., Hooker, Gaynor and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.