Baird v. Reese , 264 A.D. 805 ( 1942 )

This is a motion to modify our decision of March 18, 1942 [263 App. Div. 1070], by striking therefrom the statement that Meyer J. Lavin, appellant’s attorney, had imposed upon this court and was guilty of reprehensible conduct, and the direction for the payment of fifty dollars costs by the appellant and that the same be paid by appellant’s attorney personally. The court has conducted a hearing and examined the Fulton county clerk’s records, including the trial minutes record book. A detailed review of the facts would serve no useful purpose. It has not been shown that Lavin had actual knowledge of the none too apparent subsequent entry on the trial minutes that the motion to dismiss the complaint had been granted, although he should have known of this decision, from the record on appeal in his possession and on file in the clerk’s office. This entry was not included in the certified copy of the minutes furnished Lavin by the county clerk, although it should have been. When furnished with a correct certified copy, Lavin at once brought the same to the knowledge of the court by including it in his reply affidavit and denies that he intended to mislead the court in any way and it is now apparent that he did not. However, Ms attributing falsehood to portions of the deputy clerk’s affidavit was unjustified. Motion granted in all respects, except that the decision should award ten dollars costs payable to respondent by appellant. Hill, P. J., Crapser, Bliss, Hefiernan and Foster, JJ., concur.