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Cooley v. Cummings

56 N.Y. Super. Ct. 521 24 Jones & S. 521 Court N.Y. Super. Ct. Decision date 1889-03-05 English

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p. 521
ALFRED COOLEY, et al., Respondents v. WILLIAM A. CUMMINGS, Appellant.

Headnote

Certificate of the trial justice that the title to real estate came in question cm the trial.
It was conclusive upon the taxing officer in entering the judgment so as to include costs. Such a certificate is not such an intermediate order that can be brought up for review by an appeal from a' final judgment. There can be no available exception made to such a certificate, consequently, in the case at bar, there is no ground for the reversal or modification of the judgment based upon the certificate having been improperly granted. The relief in such case is by a motion to set it aside. In the case at bar there was no order formally made or entered, granting the motion for the certificate, and, as the case stands the defendant’s remedy, if aggrieved, is by motion and by appeal.
Before Sedgwick, Ch. J., and Dugro, J.
Decided March 5, 1889.
Appeal from so much of a judgment as awards costs in the action to the plaintiffs, and from a certificate granted by the trial judge, certifying that the title to real estate came in question on the trial.
p. 522
J. II Whitelegge, for appellant.
Chauncey Schaffer and Jacob Fromme, for respondents.

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’Connor, 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 intermediate 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, Ch. J., concurred.

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