
    Alexander Richert, Respondent, v. John Backenstross, Appellant.
   Decision as stated in memorandum of Hardin, P. J., filed with the clerk.—

Motion to vacate judgment herein, and amend the decision “ to conform to the opinion and permitting a reargument ” or permitting an appeal to the Court of Appeals.

Hardin, P. J.:

From the opinion handed down upon the decision, etc., of the appeal, it is apparent that the modification was made of the justice’s judgment, in the exercise of the powers given to the County Court by section 3043, and it was the intent of the court that the respondent should have only ten dollars besides disbursements for his costs in the County Court. In the respect mentioned as to damages, and as just stated as to costs, the judgment of the County Court was modified, so that it remained a judgment for plaintiff of forty-eight dollars and ten dollars costs besides disbursements. (See Code Civ. Proo. § 3066.) (2) The decision, or memorandum thereof, stated that the judgment of the County Court was modified as to damages and costs in the County Court in the respects mentioned, “and as so modified affirmed, without costs of the appeal to either party; ” the last part of the memorandum of decision applies to the costs of the appeal in this court; that must control notwithstanding any expression in the affirmance inconsistent therewith. The decision or memorandum, ana the order entered thereon, may be amended so as to read, viz.: Judgment of the County Court modified, so that it shall award a recovery of only forty-eight dollars damages to the plaintiff, and costs in the sum of ten dollars only, besides the disbursements in the County Court, and any other costs inserted in the judgment entered on the judgment of the County Court are stricken out of the record, neither party to have costs on the appeal to this court. (3) The motion, so far as it asks for a reargument or for leave to appeal to the Court of Appeals, is denied, without costs. Upon serving a copy of this memorandum, eitlier party may, upon five days’ notice, have an order settled before Hardin, P. J. No costs are allowed upon this motion.  