Majority
p. 358(61 App. Div. 293.) GARRETT v. WOOD. (Supreme Court, Appellate Division, Third Department. May 8, 1901.) Argued before PARKER, P. J., and KELLOGG, EDWARDS, SMITH, and CHASE, JJ.
Headnote
Judgment—Amendment—Costs.A motion to amend a decision affirming an order refusing a motion for a new trial made under Code Civ. Proc. § 1010, authorizing a new trial when, after trial by the court, no decision is filed within 20 days, by striking out a provision allowing' plaintiff costs, must be denied,- since section 3239, allowing neither party costs of the appeal from an order denying ® new trial if the appeal is from the order and the judgment, does not apply to an appeal from an order denying a motion for new trial under such section 1010.
Appeal from special term.
Action by Lena Garrett against Bradford R. Wood. Motion by defendant to amend decision ( 68 N. Y. Supp. 157 ) affirming an order refusing a new trial.
Denied.
Barnwell R. Heyward, for plaintiff.
Thompson & Andrews, for defendant.
This is a motion by defendant to amend a decision of this court affirming an order refusing a new trial, .by striking
p. 359
out from said decision the provision allowing costs to the plaintiff, and for other relief. . At the time of the argument and decision'of the appeal from the order, there was argued and decided an appeal from the interlocutory judgment upon which the motion for a new trial was made. This motion is made under section 3239 of the Code of Civil Procedure, which provides that where an appeal is taken from an order refusing a new trial, and an appeal is also taken from the judgment rendered upon the trial, neither .party is. entitled to the costs of the appeal from the order. By reference to the revisors’ notes found in Throop’s edition of the Code, it will be seen that the order contemplated by the section quoted was an order granting or refusing, a new trial upon the merits, in which, case appeals from both the judgment and the order are unnecessary. The motion for a new trial in this case was made under section 1010 of the Code. The appeal from the order denying that motion raised questions.entirely distinct from those raised by the appeal from the interlocutory judgment. We are of opinion, therefore, that subdivision 2 of section--3239 of the Code does not apply to the decision made. This motion must therefore be denied, with $10 costs.
Motion to amend decision denied, with $10 costs.