Brown v. . Leigh , 13 Abb. Pr. 305 ( 1872 )

The order from which the plaintiff has appealed does not affect a substantial right, and is not, therefore, appealable to this court. The defendant by his application only sought to be relieved from a judgment, which he claimed to be irregular, and an adjustment of costs, which he claimed to be unauthorized. In both positions he was right, and entitled to his motion. No judgment could be entered upon the remittitur of the order of this court reversing an order of the Supreme Court.

The proceedings were interlocutory, and did not authorize the entry of a final judgment. The Code defines a judgment, and prescribes the mode of its recovery, and the formula for its perfection. (Code, §§ 245, 274, et seq.) An entry of a judgment for costs upon an interlocutory order is nowhere authorized. So, too, the clerk is only authorized to adjust costs when they enter into a judgment. (Code, § 311.) In interlocutory and special proceedings, the costs are to be adjusted by the judge or court before whom the same may be heard, or in such manner as the judge or court may direct. (Id.) The court did not decide that the plaintiff was not entitled to the costs of his former appeal, and the order now appealed from did not affect his right to them. It only left him to apply for their adjustment and a proper order for their payment, as he should be advised. Doubtless the court might upon this application have adjusted the costs and made the proper order for their recovery, but it was not thought expedient, and no legal or substantial right of the plaintiff was violated by the omission. The former order of the Supreme Court having been reversed, with costs, the plaintiff, then the appellant, was entitled to full costs of an appeal to this court. (Code, § 307.) Appeals to this court from orders are not within the exceptions in sub. 5 of this section. The plaintiff was entitled under the order of this court to the costs claimed, except costs on motion to dismiss appeal, $10, and expenses to Court of Appeals, Albany, $10, and entering of judgment and the execution, $1.19; and the court would undoubtedly, upon a proper application, have adjusted them in accordance with these views, and they would have been collectible as other interlocutory costs are collected. But the order of the court, merely setting aside proceedings as irregular, did not affect a substantial right, and therefore the appeal must be dismissed, with costs.

The costs of the two appealed from orders will about balance each other, and the Supreme Court can, in its discretion, make the proper order for setting off one against the other, and for the payment of any difference to the party entitled.

The order now appealed from did not affect in any way the progress or result of the litigation between the parties, or bear at all upon the merits of the controversy, but in this respect it does not differ from the great majority of orders brought here by appeal. Not one in ten of the appeals from orders to this court affect in any way the merits of litigations, and only add to the expense of legal controversies, and hinder and delay their final termination. There appears to be a mania for taking the judgment of the court of last resort upon the most trifling controversies and the most immaterial orders. It is right, therefore, that parties should pay the costs.

Appeal dismissed, with costs.

All concur.

Appeal dismissed.