Oliver v. Sahler

Appellate Division of the Supreme Court of the State of New York

Decided November 22, 1918

Appellate Division of the Supreme Court of the State of New York · decided 1918-11-22

Appeal by the defendant, Esther J. Sahler, as administratrix, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 14th day of May, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Decided 1918-11-22

Lyon, J.:

¶1This is an appeal from a judgment entered upon a note of $3,000, and from an order denying a motion for a new trial. The defense was want of consideration. The verdict is right. The judgment, however, includes costs, and that particular is wrong. (Code Civ. Proc. §§ 1835, 1836.) There was no certificate of the trial judge showing that the action was unreasonably resisted or neglected.

¶2The judgment should be modified by deducting the costs, and as so modified affirmed.

¶3All concurred, except John M. Kellogg, P. J., dissenting and voting for affirmance.

¶4Judgment and order modified as per opinion and as so modified affirmed, without costs.