Cooley v. Cummings — 24 N.Y. St. Rep. 172

Majority

p. 172

Cooley et al., Resp’ts, v. Cummings, App’lt.

(New York Superior Court,

General Term,

Filed March 5, 1889.)

Headnote

1. Costs—Cektificate of tbial justice as to title to seal estate.

A certificate of the trial justice, that the title to real estate came in question on the trial, is conclusive upon the taxing officer, and he, therefore, commiis no error in entering judgment so as to include costs to the plaintiff.

2. Same—Remedy of defendant is by motion.

Where no order granting the motion for a certificate has been finally made or entered, the remecly of defendant, if aggrieved, is by motion to set the certificate aside, and not by appeal.

p. 173

J. H. Whitelegge, for app’lt; Chauncey Shaffer and Jacob Fromme, for resp’ts.

This is an appeal from so much of a judgment as awards costs in the action to the plaintiffs, and from a certificate granted by the trial justice, certifying that the title to real estate came in question on the trial. The certificate was conclusive upon the taxing officer (Lillis v. O'Conner, 8 Hun, 280 ), and he, therefore, committed no error in entering judgment so as to include costs. I do not believe that the granting of a certificate is such an immediate order as is when specified in the notice of appeal brought up for review by an appeal from a final judgment, and, therefore, I think there can be no available exception to the granting of a certificate. To my mind, therefore, no ground for the reversal or modification of the judgment has .been presented. If the certificate was improperly granted, it- may be set aside on a motion made for that purpose. Barney v. Keith, 6 Wend., 555 .

It seems that no order granting the motion for a certificate was formally made or entered; and so, as the matter stands, the defendant’s remedy, if aggrieved, is by motion and not by appeal.

The appeal must be dismissed, with costs.

Sedgwick, J., concurs.