John H. Watson, Appellant, v. Lucretia Kemp, Respondent

John H. Watson, Appellant, v. Lucretia Kemp, Respondent. (Argued October 2, 1899; decided October 10, 1899.) Reported below, 42 App. Div. 372. Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 11, 1899, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term. The motion was made upon the ground that the decision of the Appellate Division was unanimous. The original order of affirmance failing to state that the decision of the Appellate Division was unanimous, it was amended September '5, 1899, to that effect, nwic pro tune, and it was also ordered that the appellant have leave to. Withdraw his appeal to the Court of Appeals, taken July 31, 1899, respondent to pay costs before notice of argument in Court of Appeals. Appellant withdrew his appeal and execution was issued upon the judgments in the courts below, but respondent has not paid the costs. A. W. Boynton for motion. Francis A. Smith opposed. [MAJORITY] Motion denied, with costs. If, however, the respondent shall pay to the appellant the costs in this court' before notice of argument within ten days after adjustment and notice thereof, then the motion is granted, without costs. It is further ordered that, if the respondent shall not pay the costs as herein provided, then the order of September 5, 1899, amending "the judgment herein, shall be disregarded and the judgment as originally entered and set forth in the return to this court filed August 19, 1899, shall stand as unamended and be regarded as the only judgment before this court for review.