Opinion
November 15, 1939.
Present — Sears, P.J., Crosby, Lewis, Cunningham and Dowling, JJ.
Order so far as appealed from reversed on the law and facts and judgment for costs entered in favor of the defendant William Weible as against the defendant William H. Schneider set aside and vacated without prejudice to any steps to be taken by the defendant William Weible to retax the costs against William H. Schneider before the proper taxing officer in accordance with this memorandum, without costs of this appeal to any party. Memorandum: We treat this appeal as though it were an original motion before this court to correct the judgment entered herein upon our order. As the practical effect of the pleadings has resulted in making the action one to reform a deed, proof of the facts was required before judgment could be entered. By the provisions of our order of November 15, 1933, which awarded a separate bill of costs at Special Term against the present appellant, William H. Schneider, who had failed to appear in the action, the present respondent Weible was entitled to costs against the defendant William H. Schneider limited to those taxable against a defendant upon default. We, therefore, set aside the judgment for costs entered against the present appellant and direct the proper taxing officer to retax the costs against the present appellant in accordance with the foregoing. All concur. (The portion of the order appealed from denies a motion to vacate a judgment for costs.)
See 239 App. Div. 329; 273 N.Y. 662. — [REP.