Mahlon B. Oakley, Appellant, v. John S. Cokalete, Respondent

Mahlon B. Oakley, Appellant, v. John S. Cokalete, Respondent. Amendment of a judgment roll and an order granting an extra allowance — the application therefor should he made to the trial justice. Where it is sought to amend an order of the trial judge granting an extra allowance in an action, and also to amend the judgment roll by striking from it certain recitals as to admissions made upon the trial, the application should be made to the judge who tried the cause, if he be capable of acting. Appeal by the plaintiff, Mahlon B. Oakley, from an order of the. Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 4th day of October, 1895, amending an order for an additional allowance and also the judgment roll in the action. The Special Term at which the order appealed from was made was held by Mr. Justice Dykman. The cause was tried before Mr. Justice Barnard. Silas J. Owens, for the appellant. David W. Travis, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The order appealed from was not made by the same judge who tried the cause. It amended an order of the trial judge granting an extra allowance and also the judgment roll by striking therefrom certain recitals as to admissions made upon the trial. The question as to whether these recitals were correct or not could best be determined by the judge before whom the action was tried, inasmuch as he was still on the bench ;• and, in the exercise of a sound discretion, an application of this kind should not be entertained under such circumstances by another judge having no personal knowledge as to what actually occurred upon the trial and compelled to depend upon the conflicting affidavits of interested attorneys. ■ It would be different if the trial judge were no longer capable of acting in the case, for then the application would necessarily have to be made before some one else. Order reversed, with ten dollars costs and disbursements. All concurred, except Pratt, J., not sitting. Order reversed, with ten dollars costs and disbursements.