Lant v. Rasines

By the order entered by the plaintiff-respondent, May 2J, 1896, the judgment appéaled from was reversed and a new trial ordered, with costs “ to the appellant ” to abide the event.

The defendants-appellants. thereupon moved to resettle the order by making it read as follows: “ Ordered, that the said judgment of affirmance ” (of the City Court), be and the same hereby is reversed and a new trial ordered, with costs of this court and the court below to abide the event.” The plaintiff-respondent consented to the granting of the motion, and a new order in accordance with the application and consent was accordingly made on June 6, 1896. '

• ' The new trial has been had in the City Court, and there is again -a verdict for the plaintiff.

• The defendants find that the amended order of reversal which they induced the court to enter is not as favorable to them, in view of the result of the new trial, as the original order would have been and they now move to again resettle it by restoring it to its original form, with costs “ to the appellant ”' to abide the event.

The defendants-appellants having by their own voluntary act induced the plaintiff-respondent to consent to change the order by adopting their own phraseology, are not in a position to require the court to nullify such act and consent by a third order restoring the one originally made.

*415' Not. only is the defendants’ present application of too irregular a character' to merit approval, but the first amendment obtained upon the consent of; the plaintiff made the second order one essentially by consent, and in the nature of a stipulation binding on the parties to it. Matter of New York, etc., R. R. Co., 98 N. Y. 453; Smith v. Barnes, 9 Misc. Rep. 368. To relieve from such á stipulation would be to invite a repetition of the practice attempted.

The application must be denied, but without costs.

Present: Daly, P. J., MoAdam and Bischoff, JJV

Motion denied, without costs.