
    Patrick M. Carolan, Individually and as Executor, etc., of Neal O’Donnell, Deceased, Appellant, v. Anthony O’Donnell and Others, Defendants, Impleaded with Rebecca O’Donnell and Others, Respondents.
    First Department,
    December, 1905.
    Judgment — costs stricken from judgment on motion.
    When the Appellate Division has reversed an order allowing costs out of the -estate to unsuccessful contestants of a will in an action -under section 2653a of the Code of Civil Procedure, such costs should he stricken out of the judgment on a subsequent motion therefor. Striking out such costs is not an amendment or correction of the judgment in a material matter which can only be effected by appeal.
    Appeal by the plaintiff, Patrick M. Carolan, individually and as executor, etc., of Heal O’Donnell, deceased, from so much of an order of the Supreme Court, made.at the Hew York 'Special Term and entered in the office .of the clerk -of .the county ,.of Hew Yoi’k on the 5th' day of October, 1905, as denies the plaintiff’s motion to-amend a judgment entered herein on the 12th day of May, 1905.
    
      
      Joseph H. Fargis, for the appellant.
    
      Thomas Bracken, for the respondents.
   Laughlin, J.:

This action was brought pursuant to the provisions of section 2653a of the Code of Civil Procedure to establish a will. The action was defended by certain heirs of the testator who contested the will. Upon the trial the court directed a verdict in favor of the plaintiff. The trial judge subsequently made an order granting an extra allowance in favor of each party and directed that costs be taxed in favor of each party and that the same be paid out of the funds of the estate. The costs of the unsuccessful defendants were taxed and judgment was entered directing their payment and the payment of the extra allowance out of the estate pursuant to the terms of the order. The plaintiff subsequently appealed from the order and this court held that the trial court ivas not authorized in granting the extra allowance or awarding costs to the unsuccessful parties. (105 App. Div. 577.) After the order of reversal was duly entered the plaintiff moved to strike out the award of costs and extra allowance from the judgment that had been entered. The motion was denied apparently on the theory that it was a motion to amend a judgment in respect to a material matter and that the remedy is to appeal. (See Gass v. Striek, 19 U. Y. St. Kepr. 315.) We are of opinion that in this view the learned court erred. This was not an application-to correct or amend a judgment for some alleged omission or error on the part of the trial judge in making an order or decision which was the authority for the judgment. It was not an attempt to review by motion instead of appeal, an order or decision still standing in full force and effect. Here, the only authority for incorporating the costs and extra allowance was the order of the court which, although of full force and effect at the time of the. entry of judgment and, therefore, at that time authorizing it, was subsequently reversed. The judgment, so far as it relates to this allowance and these costs awarded to the defendants, now stands without authority. It is precisely the same as if the. successful party, on entering' a judgment, exceeds the terms of the decision of the court or referee which is the basis for the judgment. In such case it is well settled that the. judgihent niay be corrected- by motion. -

' It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. ' .

O’Brien; P. .J., Ingraham, McLaughlin and Houghton, JJ., concurred. .

Order reversed, with, ten dollars; costs and disbursements, and. motion granted, with ten dollars costs.  