
    Topliff v. Freeman.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    Costs—Right to.
    On denying an application for a new trial by a plaintiff whose complaint had been dismissed, the court directed that the minutes might be corrected on the motion of plaintiff, so that the defendant should not recover costs. Held, that minutes so corrected by the consent of both parties, and a judgment entered thereon, were conclusive upon defendant as to his right to costs.
    Appeal from special term.
    Action by George R. Topliff against Cuyler Freeman. From an order denying a motion for the taxation of costs the defendant appeals.
    Argued before Barnard, P. J„ and Dykman and Pratt, JJ.
    S. T. Freeman, for appellant. B. B. Moffat, for respondent.
   Barnard, P. J.

This action was brought upon a note indorsed by the defendant. The maker was one F. B. Freeman. Upon the trial the court ordered a judgment for the plaintiff against the maker and dismissed the complaint against the indorser. The indorser was entitled to costs, as it appeared from the minutes of the clerk. The plaintiff made a case, and upon it moved for a new trial against the indorser. This was denied, with $10 costs, but in the order denying the new trial there was inserted a provision that the plaintiif might move to correct the minutes, so that the indorser should recover no costs of the trial. The minutes were therefore corrected by the consent of both attorneys in open court, and a judgment finally entered in favor of plaintiff against the maker, with costs, and in favor of the indorser without costs. The defendant indorser then made a motion to tax the costs of the defense, according to law, and this motion was denied, and this appeal is brought therefrom. Whatever may be the legal right as between the plaintiff and the indorser, Freeman, in respect to costs, it is too late, after the consent, to change the minutes so as to make the decision in favor of the defendant, Cuyler Freeman, without costs, for that was the question between the parties. Judgment was entered upon that disposition of the case, and a motion subsequently made to correct the judgment based upon this consent was improper, and should have been denied. This order should therefore be affirmed, with costs and disbursements. All concur.  