This is a motion by defendant to amend a decision of this court, affirming an order refusing a new trial, by striking out from'said decision the provision allowing costs to the plaintiff, and for other relief. At the time of the argument and decision of the appeal from the order, there was argued and decided an appeal from the interlocutory judgment upon which the motion for a new trial was made,, This motion is made under section ^3239 of the Code of Civil Procedure which provides that where an appeal is taken from an order refusing a new trial, and an appeal is also taken from the judgment rendered upon the trial, neither party is entitled to the costs of the appeal from the order. By reference to the revisers’ notes found in Throop’s edition of the Code it will be seen that the order contemplated by the section quoted was an order granting or *294refusing a new trial upon the merits, in which case appeals from both the judgment and the order are unnecessary. The motion for a new trial in this case was. made under section 1010 of the Code. The appeal from the order denying that motion raised questions entirely distinct from those raised by the appeal from the interlocutory judgment. We are of opinion, therefore, that subdivision 2 of section 3239 of the Code does not apply to the decision made. This motion must, therefore^ be denied, with ten dollars costs.
All concurred.
Motion to amend decision denied, with ten dollars costs.