Majority
p. 35ABRAHAM VAN DOLSEN, et al., Respondents, v. WILLIAM P. ABENDROTH, Imp., &c., Appellant. Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ. Decided January 4, 1886.
Headnote
Judgment—setting aside, on motion or affidavits.The erroneous computation of interest on the trial, does not constitute a ground for setting aside, upon a motion founded on affidavits, a judgment entered in conformity with the verdict.
Appeal by defendant from order denying his motion to vacate the judgment against him entered on verdict of jury.
Arnoux, Bitch & Woodford, attorneys, and William H. Arnoux, of counsel for appellant.
Norwood & Coggeshell, and Carlisle Norwood, Jr., of counsel, for respondents.
On the trial, there was an erroneous computation of interest, to the extent of $2.62, and this was included in the verdict and judgment for plaintiffs. This error was the ground of a motion below to set aside the judgment. Much might be said in the case. It is
p. 36
not necessary to consider more than one proposition. The error complained of is, in its character, like any error based upon inaccurate or mistaken testimony. The party who may be affected unfavorably by it is concluded by a failure to answer or correct it, or to make it the subject of objection and exception at the time. It is inadmissible to try the issue of damages anew upon affidavits read upon a motion. It is not necessary to consider the power of the court trying the case to correct such an error, during the term, or of the special term upon a motion for a new trial on a case so settled.
Order affirmed, with costs of motion, $10, and disbursements to be taxed.