Sabater v. Sabater
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Domingo M. Sabater, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew York on the 27th day of March, 1896, denying the defendant’s motion to amend the judgment entered in the action by striking out the provision thereof awarding costs to the plaintiff. The action was brought for an absolute divorce.
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Appeal by the defendant, Domingo M. Sabater, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew York on the 27th day of March, 1896, denying the defendant’s motion to amend the judgment entered in the action by striking out the provision thereof awarding costs to the plaintiff. The action was brought for an absolute divorce. Issues were joined therein, and the action was referred to a referee to hear, try and determine. The case, was tried and the report of the referee was made and filed, directing judgment for the…
1Opinion of the Court
Williams, J.:
The court had no power to insert in the judgment the provision for the recovery of costs. The referee had discretion to allow or disallow costs. The Special Term had no such power. It .could *71insert no provision in the judgment not authorized by the referee in his report. (Jones v. Jones, 71 Hun, 519.) This provision in the judgment was unauthorized, and the remedy to correct the judgment in this respect was by motion to strike out. It is doubtful if the question could be raised by appeal from the judgment. (Brigg v. Hilton, 99 N. Y. 517.)
The order appealed from should he…
2Cases cited1 opinion
- Brigg v. . HiltonNew York Court of Appeals · 1885
3Cited by2 opinions
- Stevens v. WeissNew York Supreme Court · 1898
- Taylor v. TaylorNew York Supreme Court · 1909