Post v. Cobb — 13 N.Y. St. Rep. 555

Majority

p. 555

Lena Post, App’lt, v. John H. Cobb, Resp’t.

(Supreme Court, General Term, First Department,

Filed January 23, 1888.)

Headnote

Motions and orders—Judge may modify his decision on settlement of AN ORDER.

The court, on entering the order upon a motion, has power to modify or add to the decision announced hy him. Where'the clerk enters an order, upon the decision of a judge, the decision must he strictly followed, but where, the judge settles the order himself, the order is the formal disposition of the motion which must control.

Appeal from an order denying motion to strike out part of an amended answer as sham, and for judgment on the-rest of the amended answer as frivolous.

Appeal from an order denying a motion for a settlement of the above mentioned order.

Appeal from an order denying a motion for a re-settlement of the last above mentioned order.

Moore & Moore, for app’lt; Daniel T. Kimball, for resp’t.

The two appeals from the orders and motions to re-settle previous orders, are absolutely frivolous and should be dismissed, with costs of appeal in each.

p. 556

The court, on entering the order upon the motion, had. the power to modify or add to the decision announced by him. It is undoubtedly true that where the clerk enters an order upon the decision of a judge, such decision must be strictly followed, but where the judge settles the order himself, the order is the formal disposition of the motion which must control.

The cases of The Board of Commissioners of Pilots v. Spofford ( 3 Hun, 52 ); Combs v. Combs ( 62 How., 304 ); Newcomb v. Hale ( 64 How., 400 ), simply decide that where costs are in the discretion of the court and the court does not award costs, that the clerk cannot do so. In the case at bar the court did award the costs, as it had a right to do.

The order denying the motion to strike out part of the amended answer as sham, and for judgment on the rest of the answer as frivolous, was properly made.

The appellant, by this motion, was attempting to try an issue which he confesses by his motion to have been presented by the anwer upon affidavits, and as to which the defendant was entitled to. a jury trial. That the answer was not frivolous, is evidenced by the elaborate brief submitted by the appellant upon this appeal.

The order denying motion to strike out, and judgment should be affirmed, with costs and disbursements.

Bartlett, J., concurs.