Majority
p. 161HENRY WEHLE, Plaintiff and Appellant, v. THE BOWERY SAVINGS BANK, Defendant and Respondent. Before Monell, Ch. J., and Sedgwick, J. Decided December 6, 1875.
Headnote
I. JUDGMENT, VACATING.1. Discretionary.
a. So far as that an order of vacatur will not be reversed unless there was an unmistakable abuse of discretion.
1. What does not show such abuse.
H. SUBSTITUTION OP PARTY DEFENDANT.
1. Costs.
a. When the order of substitution gives the defendant the costs of action, he is entitled to such costs as the Code prescribes.
1. The question as to whether the order should have given costs can be raised only on appeal from the order itself.
p. 162
Appeal from an order vacating a judgment, and from an order affirming a taxation of costs.
Thé defendant on March 12, 1875, made a motion for the substitution in its place as defendant of one Peter Weis. The motion was decided on the 15th, and was granted. On the 17th plaintiff obtained an order requiring the defendant to show cause,, on the 18th, why the motion should not be re-argued. On the-19th the motion for a re-argument was denied with ten dollars costs of motion, and an order to that effect was entered on that day. On March 20th both defendant and plaintiff handed up orders proposed by them respectively to be entered on the decision of the motion for substitution. On the 22nd the judge settled the order, and the same was entered on that day. The order as thus settled, bore date in its caption as of March 12th (the date of the argument of the motion), and ordered that the said Peter Weis be substituted as defendant in this action in place of the Bowery Savings Bank, and that the said The Bowery Savings Bank deposit the amount claimed in the summons herein, less its costs herein to be taxed by the clerk of this court, in United States Trust Company, and that the said The Bowery Savings Bank be and it hereby is discharged from all liability to either party; and that the said Peter Weis have twenty days after the service of the order within which to plead, and that the prevailing party recover the above costs.
This- order was not served on plaintiff’s attorney until April 2, 1875. On the 23rd of March, after the entry of said order, dated March 12th, but before its service on the plaintiff’s attorney, plaintiff’s attorney entered judgment by default against defendant. The j udgment roll contained, so far as the appeal book shows, no proof of the service of the summons and complaint on the defendant, and the only proof contained therein
p. 163
of the defendant’s time to answer having expired, and of no answer having been served, was this:
“City and County of New York. in the above action, being duly sworn, says that no answer or demurrer has been received or served in pursuance of the requirement of the summons in said action.
CHAS. HOLDZIEB.
Sworn to before me, this 23d day of March, 1875.
Henry Fuehrer,
Notary Public,
Kings County.”
On April 5th, 1875, the deposit required by said order dated March 12th, was made.
On April 5,1875, defendant taxed its costs under said order dated March 12th, and the order denying the motion for re-argument. The costs as taxed were, twenty-five dollars for costs before notice of trial, and ten dollars costs given by the order denying the motion for a re-argument.
Plaintiff moved for a re-taxation, which was denied, and from the order entered on such denial he appeals.
On April 8th defendant noticed a motion to set aside the judgment entered March 23d, specifying in the notice various grounds of irregularity. The motion was granted, and from the order entered thereon the plaintiff appeals.
Simon Sultan, attorney, and Henry Wehle of counsel for appellant.
Norwood & Coggeshall, attorneys and of counsel for respondent.
Apart from the irregularities in the entry of judgment in this case, of which there are several, the power of the court to -va
p. 164
cate a judgment is so far discretionary, that it must be a case of unmistakable abuse of such, discretion that will lead the appellate court to reverse an order setting the judgment aside.
Ño such abuse of the power appears in this case.
The order should be affirmed, with costs.
In respect to the appeal from the taxation of the defendant’s costs upon the order substituting Weis as defendant, the only question is as to the items taxed. The order does not appear to have been appealed from, and as it gives to the Bowery Savings Bank its costs in the action, to be taxed, we are, as the court below was, concluded by it, and can not inquire whether they should have had costs or otherwise.
The item of twenty-five dollars before notice of trial, is the fee prescribed by the Code, and the ten dollars costs of opposing motion for a re-argument, was given by the order denying the motion.
The decision below was correct, and the order should be affirmed, with costs.
Sedgwick, J., concurred.