People ex rel. Lumley v. Lewis

3 Abb. Ct. App. 537

• Court: New York Court of Appeals
• Decided: September 15, 1867
• Status: Published

Opinion

By the Court.

Davies, J.

The reversal by the general term of the order of the special term, was, in effect, an affirmance of the adjustment and taxation of costs. From this order of the general term the defendants have appealed to this court, and the relators move to dismiss the appeal.

The judgment entered upon the writ of mandamus in this action is reviewable in this court, and, upon the appeal from such judgment, this court has power to review any intermediate order involving the merits, and necessarily affecting the judgment. Code of Pro. § 11, subd. 1. The intermediate order herein referred to is any order of the character described, made in the action, after the commencement of the same, and before final judgment entered. The order appealed from in this action was made after judgment, and does not, therefore, fall within the provisions of this part of the Code, neither is it embraced in subdivision 2 of the same section. It is not an order which in effect determines the action, and prevents a judgment from which an appeal might be taken to this court. It is not a final order made in a special proceeding, for this is an action. ¡Neither is it a final order made upon a summary application in an action after judgment. The order appealed from, therefore, does not fall within any classification of orders appealable to this court, as defined by the Code.

But a conclusive objection to the appeal is that this court does not review questions upon the adjustment and taxation of costs. Orders made for readjustment or re taxation, or orders made affirming such adjustment and taxation, are not appeal-able to this court. Such has been the well-settled practice of this court. Sherman v. Daggett, 3 How. Pr. 426.

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The application should be dismissed, with costs.

A majority of the judges concurred

Appeal dismissed, with costs.

In Sherman v. Daggett, 3 How. Pr. 426, which is here referred to, the court, upon the authority of Rogers v. Holly, 18 Wend. 350, dismissed an appeal by complainants from so much of a decree in chancery, in their favor, as refused them costs. No written opinion was delivered ; but the decision was on the ground that the award of costs in such a case was discretionary. See Lansing v. Russell, 2 N. Y. (2 Comst.) 563. See also on this subject, Downing v. Marshall, 37 N. Y. 380, and Rose v. Rose, 28 Id. 184.