Thompson v. Bullock

16 How. Pr. 213

• Court: New York Court of Appeals
• Decided: June 15, 1858
• Status: Published

Opinion

By the court—Pratt, Judge.

The order of the court below striking out the plaintiff’s costs in this case, is clearly not appealable to this court.

It is claimed on part of the plaintiff, that it is a final order in a summary application after judgment, and affecting a substantial right. We think that the plaintiff’s counsel is mistaken in assuming that this order comes under the provision of the Code. It hás been repeatedly held by this court, that the final order referred to in that provision of the Code, is a final order in proceedings based upon the judgment, and assuming its validity—such as an application of a judgment creditor for the surplus money arising upon the sale of mortgaged premises upon foreclosure. (Sherman agt. Phelps, 2 Comst. 186; Dunlap agt. Edwards, 3 id. 341; Humphrey agt. Chamberlain, 1 Kern. 274.) The motion in this case was made in the court below upon allegations of irregularity, which went to the validity of a portion of the judgment itself. It does not appear that the supreme court has decided that the plaintiff is not entitled to costs. That court may have only decided that the proceedings of the plaintiff, in procuring the adjustment of his costs, were irregular. At all events, an order striking out of the judgment the costs, is not an order in a proceeding after judgment affirming its regularity and validity, and is therefore not appealable within the cases above cited.

Appeal dismissed.