Wehle v. Bowery Savings Bank

Apart from the irregularities in the entry of judgment in this case, of which there are several, the power of the court to -va*164cate a judgment is so far discretionary, that it must be a case of unmistakable abuse of such, discretion that will lead the appellate court to reverse an order setting the judgment aside.

Ño such abuse of the power appears in this case.

The order should be affirmed, with costs.

In respect to the appeal from the taxation of the defendant’s costs upon the order substituting Weis as defendant, the only question is as to the items taxed. The order does not appear to have been appealed from, and as it gives to the Bowery Savings Bank its costs in the action, to be taxed, we are, as the court below was, concluded by it, and can not inquire whether they should have had costs or otherwise.

The item of twenty-five dollars before notice of trial, is the fee prescribed by the Code, and the ten dollars costs of opposing motion for a re-argument, was given by the order denying the motion.

The decision below was correct, and the order should be affirmed, with costs.

Sedgwick, J., concurred.