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 can not 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.
Ingraham, J.(After discussing some questions not necessary to be stated here.) The plaintiff was only authorized to charge interest from the time the claim was presented, namely, 25th February, 1859.
I suppose the referee had no authority to give costs against the defendants. The right to recover costs depends upon *437the order of the court, on a motion to be made therefor. Whether such motion was made or not is not before us. It is not now reviewable on this appeal; If the costs were improperly inserted in the judgment, the defendants’ remedy is by motion to strike them out of the judgment. Upon that point, I express no opinion.
The judgment in this case should be reduced by deducting the discount charged upon the notes, ($135.62J) from the amount found to be due on the 8th January, 1864, viz. $2772.77, leaving, as the sum due at • that time, $2637.15.
Interest should be allowed on this sum from 25th February, 1859, and the judgment should be affirmed for that amount.
If the plaintiff declines within ten days to remit the balance and take a judgment for this amount, the judgment and report should be set aside and the case referred back to the referee ; costs to abide event.
The plaintiff may, if he elects to take this judgment, include therein the costs as taxed, without prejudice to a motion by the defendants to strike out such costs, and to a motion by the plaintiff to be allowed costs.