Baker v. McMullen

In an action to recover mpon a promissory note, judgment was entered after inquest had, but was subsequently opened, vacated and set aside upon condition that the defendant file “ an undertaking in the sum of $200, as security for any judgment the plaintiff may recover herein * * * and pay $10 costs to plaintiff’s attorney.”

The action was again tried, judgment was rendered in favor of the plaintiff, and the clerk of the court taxed, among other things, as costs, two trial fees; issues of fact, $60; fees on two trials, $4; entering two judgments, $2. Thereafter, the defendant made several motions, and ultimately succeeded in obtaining an order for retaxation, which disallows one trial, one entry of judgment and one clerk’s fee, predicating the reduction upon construction by the court of the terms of its order opening and vacating the judgment first entered. The terms imposed by the court for favor granted were within its discretion, and> unless abused or mistakenly exercised, beyond interference. Flannery v. James, 18 Week. Dig. 557. In granting the motion for retaxation, the court recorded its construction of its former order, saying: “ It was intended by me that that amount should be payment of costs of the inquest and disbursements that the plaintiff had incurred, or was entitled to, up to the date of that decision.” The terms to be imposed upon opening the default were within the discretion of the court at Special Term, and if its order had provided that the plaintiff was not to have the costs and taxable disbursements of the first trial, for an inquest is a trial, the defendant would have been relieved from their payment, and they could not have been taxed by the clerk. The *130•defendant’s counsel having failed to obtain an order containing the terms which he claims it should have had, it cannot now be ■amended by an expression, two years later, of what the learned justice intended, for such unexpressed intention can form no part •of the action of the court. The taxation by the clerk of the trial fee and disbursements of the first trial was correct, and should mot have been stricken out.

The order of the General Term of the Oity Court should be ¡reversed, with costs to the appellant.

Freedman, P. J., and Leventritt, J., concur.

Order reversed, with costs to the appellant.