Charles F. Gall, Respondent, v. Amelia Gall, as Administratrix, etc., of Joseph Gall, Deceased, Appellant

Charles F. Gall, Respondent, v. Amelia Gall, as Administratrix, etc., of Joseph Gall, Deceased, Appellant. Motion to strike from, a judgment an allowance of costs against an administratrix— denied, because the question was decided on an appeal from the judgment, and by an order modifying the judgment, and, also, because of laches. October 16, 1897, a judgment was recovered against an administratrix which directed the costs of the action to be recovered out of her individual property. October 22, 1897, the administratrix made a motion to strike from the j udgment the provision awarding costs against her individually, and to set aside and vacate the certificate of the trial justice allowing costs. The motion resulted in an order modifying the. judgment so far as it directed the costs to be paid by the administratrix individually, but denied the motion in all other respects. The defendant took no appeal from the order, but did appeal from the judgment as modified, which was affirmed at the Appellate Division, a further appeal to the Court of Appeals being dismissed in October, 1899. September 19, 1900, the administratrix, without obtaining leave of the court or alleging any new facts, made a motion to strike from the judgment originally entered the provision awarding costs to the plaintiff and to amend the judgment to that effect on the ground that the justice, before whom the case was tried, had no power to award costs and allowances. Reid, that the motion was properly denied for the following reasons: First. That the question as to the power of the court to award costs was settled in the affirmative on the appeal from the judgment; Second. That the order modifying the judgment, not having been appealed from, was final on the question, and Third. That the administratrix was guilty of laches. Appeal by the defendant, Amelia Gall, as administratrix, etc., of Joseph Gall, deceased, from an order of the Supreme Court, made-at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 25th day of October, 1900, denying defendant’s motion to strike from the judgment 'entered in the above-entitled action a provision as to costs and allowances. • George W. McKenzie, for the appellant. Ira Leo Bamberger, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: The plaintiff on the 16th of October, 1897, recovered a judgment, including costs and allowances, against the defendant, as administra^ trix of Joseph Gall, deceased, for $21,960.60. The costs and allow-' anees amounted to $1,835.60, which, in pursuance of a certificate, made by the learned justice, before whom the case was tried, were taxed and included in and directed by the judgment to be “ collected, out of the individual property of the said Amelia Gall.” On the 22d of October, 1897, the defendant made a motion to-strike from the judgment the provision that the plaintiff recover the costs of the action out of the individual property of the defendant and to set’ aside and vacate the certificate of- the trial justice-awarding costs to. the plaintiff, which resulted in' an order modifying .the judgment in so far as it directed the costs to be paid out.. of the individual property of the defendant, and striking such provision out of the certificate, and in other respects denying defendant’s motion. From this order no appeal was taken. The defendant,, however, did appeal from the judgment as thus modified, and after •an affirmance by this court (27 App. Div. 173), she also appealed to the Court of Appeals, where, in October, 1899, the appeal was. dismissed. (160 N. Y. 696.) On September 19,1900, nearly a year after the dismissal of the-appeal to the Court of Appeals, the defendant made a motion to-strike from the judgment originally entered the provision awarding-costs to.the plaintiff and to amend the judgment to that effect, “ on the ground that the Justice before whom, this case was tried' had no power to award costs or allowances. *. * * The clerk * * had no power or authority to tax costs and allowances and enter-judgment therefor.” The 'motion was denied and defendant has appealed. The order appealed from must be affirmed. (1) The power of the court to award costs to the plaintiff was before this court on the appeal from the judgment, and that question was then settled and determined. Mr. Justice Barrett, delivering the opinion of the court (27 App. Biv. 173), said: “ As to the costs, it is sufficient to say that the trial justice, upon evidence which was satisfactory to him, made the certificate required by section 1836 of the Oode of Civil Procedure. This certificate was subsequently amended upon affidavits which the appellant has not chosen to present to us. We cannot say, therefore, that this amended certificate was unwarranted. The defendant is concluded thereby upon the question of costs. Having properly awarded costs under section 1836, it was within the dis-. cretion of the trial justice, in a difficult and extraordinary case, to grant an extra allowance. This was clearly such a case and that discretion was fairly exercised.” (2) The relief which the plaintiff sought to obtain by the motion which resulted in the order appealed from, the court refused to grant by the order made in November, 1897. No appeal, as has already been said, was taken from that order, the defendant apparently being contented to review the judgment by appealing therefrom. The judgment was affirmed and the action of the justice granting the certificate approved, and inasmuch as the order of November, 1897, was not appealed from, it is final and conclusive upon the defendant, and especially so in the absence of the statement of other facts then unknown to the moving party. No new facts are alleged, nor does it appear that permission has been given to renew the motion. (3) The motion was properly denied on the ground of defendant’s laches. A party desiring to relieve himself from an order must move promptly and act with diligence. The defendant knew what the judgment was in October, 1897. She contented herself with appealing from it and made no effort to obtain the relief here sought until upwards of three years after the judgment was entered. The appeal from the present order is without merit. There is nothing in the moving papers to show any justification for the appeal, and for that reason the appellant should personally pay the costs and disbursements of the appeal. It follows that the order appealed from must be affirmed, with costs and disbursements to the respondent, to be paid by the appellant personally. Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred. ■ Order affirmed, with ten dollars costs and disbursements, to be paid by the appellant personally.