Trimm v. Marsh — 4 Thomp. & Cook 577

Majority

p. 577

Trimm, appellant, v. Marsh.

Headnote

Judgment—what is not final judgment — Costs—motion for extra allowance.

After judgment had been entered for defendant, in accordance with a remittitur from the court of appeals, that court, upon the application of plaintiff, ordered a return to it Of the remittitur, in order to enable plaintiff to move for a re-argument of the appeal. The motion being denied, and the remittitur being again sent down, before entering judgment thereon, defendant moved for an extra allowance of costs. Held, that the first judgment, being opened by the act of the plaintiff, was canceled, final j udgment was not entered, and defendant’s motion was in time.

Appeal from an order at the special term granting an extra allowance of costs to defendants. The action was brought by George S. Trimm and another against William B. Marsh and others to redeem certain mortgaged premises. The action was tried, and judgment rendered in favor of the plaintiff. This was reversed by the general term, and, upon appeal to the court of appeals, the decision of the general term was affirmed, and judgment absolute directed for defendant, which was duly entered. Thereafter plaintiffs, desiring to move for a re-argument, procured from the court of appeals an order requesting that such remittitur be returned to that court, and upon this and the motion of plaintiffs the remittitur was returned. A motion for re-argument was made in the commission of appeals and denied, and the remittitur again sent down. Before filing the same and re-entering judgment, defendants moved for an extra allowance of costs, which was granted, Mr. Justice Domohite holding as follows:

“In this case, when the former motion was heard,-there was a substantial judgment of the court, and the decision was that, as it then stood, no allowance could be given. By the plaintiffs’5own act, that judgment has been virtually canceled and vacated; and I think that, as the case now stands, the defendant can sustain his motion for an allowance, and an allowance of $500 is granted.”

Wheeler H. Peckham, for appellant,

cited Van Rensselaer v. Kidd, 5 How. 242 ; Wolfe v. Van Nostrand, 2 N. Y. 570 ; Osborne v. Betts, 8 How. 31 ; People v. N. Y. Cent. R. R. Co., 29 N. Y. 428 , 429.

Justus Palmer, for respondent.'

By taking the remittitur from the files of this court, and returning the same to the appellate court, it became necessary, after the denial of the motion in the commission of appeals, to enter another judgment in this court upon the remittitur. We think, therefore, that it cannot fairly be said that there was a" final judgment in this case at the time the motion for an allowance was made; that there was a judgment in the action which precluded the defendant from moving, or which prevented the court from granting an extra allowance,

It follows, therefore, that the order at the special term should be affirmed, with costs.

Order qffirmed.

Cases cited

Wolfe v. Van Nostrand 2 N. Y. 570 N.Y. p. 577