Sexton v. Bennett — 17 N.Y.S. 437

Majority

p. 437

Sexton v. Bennett et al.

(Supreme Court, General Term, Fifth Department.

January 22, 1892.)

Headnote

Appeal—Discretion of Trial Court—Amendment of Order.

It is in the discretion of a judge to dmend orders theretofore entered in a cause tried by him, on the ground that such orders were not entered as directed by the court.

Appeal from Wayne county court.

Action by Pliny T. Sexton against Charles W. Bennett and wife and George W. Bennett. Defendants appeal from an order directing the amendment of orders previously entered.

Affirmed.

For former report, see 9 H. Y. Supp. 394.

Argued before Dwight, P. J., and Macomber and Lewis, JJ.

M. Hopkins, for appellants Charles W. and Elvira Bennett. Camp & Dunwell, for appellant George W. Bennett. Charles MoLouth, for respondent.

A motion was made by the plaintiff upon affidavits tending to show that orders theretofore entered in the action, purporting to have been granted by the court, had been irregularly and improperly entered; that they were not the orders directed to be entered by the court; that matters were omitted which were directed to be inserted therein; and that they contained matters which were not granted by the court. The affidavits read upon the motion were quite conflicting.

The order appealed from was granted by the same justice who presided at the time the orders were granted, which the order appealed from directed should be amended. We must assume that he knew whether the orders were, in fact, the ones he granted. Having determined that they were not, he very properly directed the entry of an order amending them so that they would truly express the meaning and direction of the court. It was obviously a discretionary order, and is not reviewable by this court. The order appealed from should be affirmed, with $10 costs and disbursements of the appeal.

All concur.