Sabater v. Sabater , 39 N.Y.S. 958 ( 1896 )

Williams, J.:

The court had no power to insert in the judgment the provision for the recovery of costs. The referee had discretion to allow or disallow costs. The Special Term had no such power. It .could insert no provision in the judgment not authorized by the referee in his report. (Jones v. Jones, 71 Hun, 519.) This provision in the judgment was unauthorized, and the remedy to correct the judgment in this respect was by motion to strike out. It is doubtful if the question could be raised by appeal from the judgment. (Brigg v. Hilton, 99 N. Y. 517.)

The order appealed from should he reversed, and the motion to strike out should be granted, hut without costs of appeal or motion, because the plaintiff was the wife.

Van Brunt, P. J., Rumsey, Patterson and Ingraham, JJ., concurred.

Order reversed and motion granted, but without costs of appeal or motion.