Sexton v. Bennett — 43 N.Y. St. Rep. 85

Majority

p. 85

Pliny T. Sexton, Resp’t, v. Charles W. Bennett et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

.Appeal—Amendment of obdeb.

An order of the county court amending orders claimed to have been irregularly entered, made by the justice who presided when the original orders were made, is a discretionary one, and is not reviewable in this court.

Appeal from an order of the Wayne county court, entered in the clerk’s office of that county on the 16th day of March, 1891.

Charles McLouth, for resp’t; M. Hopkins, for app’lts; Charles W. and Elvira Bennett; Camp & Dunwell, for Geo. W. Bennett

A motion was made by the plaintiff upon affidavits 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 the 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 ten- dollars ¡costs and disbursements of the appeal.

Dwight, P. J., and Macomber, J., .concur.