Train v. Davidson

42 N.Y.S. 1133

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 1896
• Status: Published

Opinion

PER CURIAM.

The papers read in opposition to defendant’s motion to resettle the order show that the counsel who appeared for defendant and opposed the motion to consolidate was presented with the order, wrote his name therein as such opposing counsel, and returned the same to plaintiff’s counsel without objection to its form or contents, or suggestion of change in any respect. This order was presented to the court and signed by it after decision of the motion, and no change was then made or suggested. The court below was therefore authorized to conclude that the order as entered was by consent of the representative of defendant. It would have been quite proper to charge plaintiff with the costs of defendant in the city court as a condition of granting the order of consolidation; but the court had the power to decide otherwise, and defendant, not having appealed from the order, is concluded thereby, and is not entitled, upon a motion to resettle the order, to a reconsideration of that question. It may be that the order is indefinite in its recital, “and on all the papers and proceedings herein”; but, as no objection was made by counsel when it was submitted, such recital cannot now be made the basis of objection. The substantial right possessed by defendant related to the costs in the citv court, and, if any error was committed therein, it could only be corrected upon appeal. The order should be affirmed, with $10 costs and disbursements.