Niblo v. Binsse

By the court, Leonard. .J.

The judge before whom this motion was heard at special term, found that payment had been demanded before action, and unreasonably resisted. I am unable to perceive that I can find the fact better than he. The facts were before him; he passed upon them, and I cannot undertake to say that he found them incorrectly. It is not usual to review facts when they have been found by the judge who heard the motion.

The allowance, in addition to costs, depends on the same inquiry as the question of the recovery of costs.

The judge had the power to direct his order to be so entered as to prevent the necessity of another motion, or the useless proceeding of re-entering the judgment. Having decided the question of costs and allowance in favor of the plaintiff, it was proper to have the order entered nunc pro tunc.

I think the two orders appealed from should be affirmed, with $10 costs.