The defendants obtained an order containing a recital that certain affidavits and judgment rolls were read upon the motion. The plaintiff moved to resettle the order by striking out such recitals on the ground that the affidavits and judgment rolls were not mentioned in the moving papers, nor read or furnished to the court- on the argument. The moving papers for the resettlement conclusively showed such to be the fact. The opposing affidavit in behalf of defendants did not state that the affidavits and judgment rolls were mentioned in their moving papers on the original motion, or that they were actually before the court or read by him on granting the order, but asserts that they were properly recited as papers read on the motion because they were on file in the clerk’s office and were referred to by counsel upon the oral argument of the motion. This did hot entitle them to be recited as read on the motion. A paper cannot be said to have been used by a court on decision of a motion simply because it happens to be on file in the clerk’s office when neither party produces it or asks it be considered.
When an order is sought to be resettled and there is a dispute as to what papers were used and as to what recitals should be inserted, the determination of the judge or Special Term granting the order is conclusive upon this court. (Farmers’ Nat. Bank v. Underwood, 12 App. Div. 269.) Where, however, it appears without dispute that a paper was or was not used upon the motion, this court has power to review a resettlement.
A recital that a certain paper was read on a motion when it was neither mentioned in the moving'papers nor permitted by the court to be read is manifestly improper. Such practice not only compels the party who desires to appeal to incur the expense of printing a paper not used, but permits a review of the order upon papers other than those upon which it was granted. Merely orally referring to papers upon the argument of a motion is not such use of them as permits their recital in the order as having been read.
*629There being no dispute that the affidavits and judgment rolls were not' legally read upon the motion recitals to that effect in the order were improper," and the order should have been resettled by striking them out.
I, therefore, vote for a reversal.
McLaughlin, J., concurred.
Order affirmed, with ten dollars and disbursements, without-prejudice to the application indicated in opinion. Settle order on notice.