Merrill v. Cavagnaro

TYLER, P. J.

Motion for order recalling and correcting remittitur so as to include costs on appeal. The motion is based upon the contention that the judgment entered herein modified the judgment appealed from but contained no directions as to costs on appeal, and the clerk omitted to enter upon the record and insert in the remittitur a judgment that appellant recover costs.

The judgment appealed from was not reversed nor modified but simply contained a direction that upon final distribution the amount paid by the executor on account of inheritance taxes should be charged against the shares of the legatees on which the taxes were based. The direction is in no sense a reversal or modification and was not intended to be so understood. Respondent therefore is entitled to costs.

The motion is denied.

Knight, J., and Cashin, J., concurred.