Lee v. Tillotson , 4 Hill & Den. 27 ( 1842 )

By the Court,

Bronson, J.

Although it does not appear upon the papers that a rule for judgment was entered at the next term after the report was made, there can be no doubt that it was done. And besides, if the rule was never entered, it would be almost a matter of course to allow it to be done nunc pro tunc.

But I think the question of limitation does not turn on the time of entering the rule for judgment, but on the time when the final determination was made on the motion to set aside the report.. The rule for judgment was undoubtedly entered in May term, 1837 ; and if we date from that, the time for bringing a writ of error had expired before the motion for a rehearing was made, which was in May term, 1840.

The question then is, whether the limitation dates from the final determination of the court, which was made in July term, 1840, or from the subsequent filing of the judgment record in January, 1841. The statute provides, that “all writs of error upon any judgment or final determination rendered in any cause,” “ shall be brought within two years after the rendering of such judgment, or final determination, and not after.” (2 R. S. 594, § 21.) The judgment or final determination in this cause was rendered in July term, 1840, when the motion which had been made to set aside the report of the referees was denied. The record which was afterwards filed was not the judgment, but only a written memorial of the judgment which had been previously rendered. The court of errors arrived at the same conclusion upon this question in Fleet v. Youngs, (11 Wend. 522.) It follows, that the time for bringing a writ of error has already expired, and we ought not to put the plaintiffs to the expense and ourselves to the inconvenience of settling a case, when we see that it can do no good.

It would be clearly against good faith for the defendant to bring error after having obtained delays upon an agreement that he would not do it, and the motion might, perhaps, be denied upon that ground. But it is enough that he is too late.

Motion denied.