Majority
p. 1001OAKLEY v. COKALETE. (Supreme Court, Appellate Division, Second Department. June 23, 1896.) Argued before BROWN, P. J., and CULLEN, BARTLETT, and HATCH, JJ.
Headnote
Amendment of Order—Motion Before Trial Judge.A motion for an order to amend the judgment roll and previous order granting an additional allowance should be made before the judge who tried the case, unless he is no longer on the bench.
Appeal from special term, Westchester county.
Action by Mahlon B. Oakley against John S. Cokalete for the dissolution of a partnership. From an order amending an order for an additional allowance, and also the judgment roll, plaintiff appeals.
Reversed.
Silas J. Owens, for appellant.
D. W. Travis, for respondent.
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
p. 1002
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 $10 costs and disbursements.