The Plaintiff had a right, immediately upon'obtaining the modifying order of the judge, to perfect the judgment, and it was not necessary in order to give it validity to serve it on the Defendant’s attorney. The order did not require anything of the Defendant, nor was it designed to prevent her from doing anything or taking any step in the cause which coidd have been done or taken without it. It merely allowed the Plaintiff to do certain things which he was not otherwise at liberty to do, to wit: to perfect his judgment by filing the record and docketing the judgment in the supreme court and in the county clerk’s office; but to do nothing more.
But it may be said, and was urged on the argument, that by such á course the Defendant was taken by surprise, and has made this motion with good reason to believe that the Plaintiff was irregular in her proceedings. I think the Plaintiff should have given notice of the order, and in all such cases it should be done, to avoid leading a Plaintiff into the expense of a motion of this kind; and ordinarily I would require the Plaintiff to pay the Defendant’s costs of the motion, where such no? tice was not given. But in this case the Defendant’s counsel was present when application was made to the judge for the order, and was heard in opposition to it; and when it was ascertained by the Defendant that the judgment had been docketed against her, enough had come to the knowledge of her counsel to put him upon the inqury as to whether the judge had granted the order.
Upon the whole, as both parties appear to he to some extent in fault, I shall deny the motion without costs to either.