Majority
p. 246Joseph B. Bloomingdale et al., Resp’ts, v. Henry Steubing, App’lt. (New York City Court, General Term, Filed November 20, 1894.)
Headnote
Trial—Resettling order.Where an order properly expresses the decision of the court, an application for its resettlement should be denied.
Appeal from an order denying a resettlement of an order.
Cuggenheimer, Untermyer & Marshall, for app’lt; D. S. Ritterha?id, for resp’ts.
The jury at the trial having rendered a verdict in favor of the plaintiffs for six cents damages, the trial judge, upon his minutes, set the same aside as inadequate. The defendant moved to resettle the order, so that the new trial granted should be on the condition that the plaintiffs pay to the defendant the costs of the trial which resulted in the verdict. The trial judge refused to resettle the order, and the defendant appeals.
We think the trial judge was under no obligation to resettle the order as requested. The order, as originally made, expressed the decision as he rendered it, so that resettlement was unnecessary.
p. 247
If any error was committed in granting the original order, or in failing to impose proper terms thereon, it might have been reviewed on appeal from the original order, without the necessity of appealing from the order declining to resettle. For this reason the order appealed from must be affirmed, with costs.
All concur.