Majority
p. 544DIEGO S. CARO et al., Respondents, v. THE ELEVATED R’Y. Co., Appellant. Before Sedgwick, Ch. J., Freedman and Arnoux, JJ. Decided November 6, 1882.
Headnote
Judgment entered on order of general term—no notice entry necessary— special term cannot determine whether •judgment expresses intent of court.Appeal from an order denying motion to vacate or re-settle judgment.
On or about June.27, 1879, judgment in this action was entered in defendant’s favor upon a demurrer, from which judgment an appeal was taken, and on or about April 5, 1880, the judgment was reversed and judgment directed for plaintiff. The order was settled on notice, and was absolute. The original plaintiff having died, the action was revived, and thereafter, and on or about May 10, 1882, judgment herein was entered without notice of any kind. Thereupon defendant’s counsel moved the special term to vacate or re-settle the order upon an affidavit of one of the attorneys for defendant, in which he states that the judgment was entered without notice, and that he believes that it does not express the intent of the court. This motion was denied.
The court at G-eneral Term held:
p. 545
Dorsheimer, Bacon & Deyo, for appellants.
Julian T. Davies and Roger Foster, for respondents.
“After settlement of a general term order and the taxation of costs, the entry of judgment follows as matter of course. It is the clerk’s duty to see that the judgment conforms to the order. Neither the law nor the practice of the court requires notice of entry of judgment to be given. The question was made, not that the judgment did not follow the order, but that the judgment did not express the intent of the court. This was not a question for the special term to pass upon.
Order affirmed, with $10 costs.