
    JAMES E. OUTWATER, Resp’t, v. JEREMIAH MOORE, App’lt.
    Stipulation as to judgment to be entered—Court will enforce.
    This appeal is taken from a judgment of the supreme court, entered in Dutchess county, and from an order denying motion for a new trial.
    
      D. M. Guernsey, for resp’t; O. D. M. Baker, for app’lt.
   Pratt, J.

Although the defendant did not abandon his motion for a new trial, on the strength of the plaintiff’s stipulation to so modify the judgment as to require the dam to be lowered but ten inches instead of fourteen, it does not follow, as claimed by the respondent, that the stipulation has spent its force. It is rather in the nature of a contract with the court that, if a new trial be not ordered, the modification will be consented to. The court refused a new trial, and the modification should now follow as matter of course.

The action is in equity, and costs are in discretion of the court. In view of the fair and commendable spirit shown by defendant when he called in the plaintiff to fix the elevation of the old dam, which was to be the measure of the rights of the parties and of defendant’s acting upon the statement thus made by plaintiff we think it may be a wise exercise of discretion to relieve defendant from the costs of the action.

Where a party has acted with conspicuous good faith, it might seem severe to charge him with all the costs in a litigation brought about by an error in which the other party participated.

We think the judgment should be modified by limiting the alteration in the dam to ten inches, and by relieving defendant from the costs. No costs of appeal.

Dykman, J., concurs; Barnard, P. J., not sitting.  