Topliff v. Freeman — 25 N.Y. St. Rep. 102

Majority

p. 102

George R. Topliff, Pl’ff and Resp’t, v. Frederick B. Freeman, Def’t and Cuyler Freeman, Def’t and App’lt.

(Supreme Court, General Term, Second Department,

Filed May 13, 1889.)

Headnote

Costs—Right to.

On the trial of an action against the first named defendant as maker and against the second named as endorser of a note, judgment was entered in favor of plaintiff against the maker, and the complaint was dismissed as to the endorser. The’ endorser was entitled to costs, as it appeared from the clerk’s minutes of the trial, but subsequently the minutes were corrected by the consent of the attorneys of both parties in open court, and judgment was finally entered in favor of the plaintiff against the maker, with costs, and in favor of the endorser, without costs. The defendant endorser afterwards moved to tax his costs on the trial. It was Held, that whatever was the legal right of the endorser as to costs in the first instance, it was too late to demand them after his consent to change the minutes had been given; that judgment should be entered in his favor without costs.

The facts sufficiently appear in the opinion of the court.

S. T. Freeman, for app’lt; B. Burnham Moffat, for resp’t.

This action was brought upon a note endorsed by the defendant. The maker was one F. B. Freeman. Upon the trial the court ordered a judgment for the plaintiff against the maker, and dismissed the complaint against the endorser.

The endorser was entitled to costs, as it appeared from the minutes of the clerk. The plaintiff made a case, and upon it moved for a new trial against the endorser.

This was denied, with ten dollars costs, but in the order denying the new trial there was inserted a provision that the plaintiff must move to correct the minutes so that the endorser should recover no costs of the trial.

The minutes were, therefore, corrected by the consent of both attorneys in open court, and a judgment finally entered in favor of plaintiff against the maker, with costs, and in favor of the endorser, without costs.

The defendant, endorser, then made a motion to tax the costs of the defense according to law., and this motion was denied, and this appeal is brought therefrom. Whatever may be the legal right as between the plaintiff and the endorser, Freeman, in respect to costs, it is too late after the consent to change the minutes so as to make the decision in favor of the defendant, Cuyler Freeman, without costs, for that was the question between the parties. Judgment was entered upon that disposition of the case, and a motion subsequently made to correct the judgment based upon this consent was improper, and should have been denied. This order should, therefore, be affirmed, with costs and disbursements.

All concur.