| NY | Dec 9, 1919
Plaintiff brought this action in equity to establish a will jointly executed by himself and wife on September 30, 1895, also for other relief. The complaint was dismissed at the Trial Term. From the judgment dismissing complaint on the merits, plaintiff appealed to the Appellate Division. The latter court reversed the judgment entered upon the decision of the Trial Term, reversed numerous findings made thereat and made new findings of fact and conclusions of law favorable to the plaintiff. The order of the Appellate Division provided for equitable relief and that plaintiff recover costs and disbursements of the court below and of "this court" to be taxed, and further that "judgment be entered accordingly." Plaintiff thereupon entered a judgment which recited the reversal of the judgment below and adjudged that plaintiff recover of the defendants $829.99 costs and have execution therefor, but failed to enter the judgment directed by the order of the Appellate Division. Upon the appeal herein counsel for both parties argued at length various questions determined by the findings made by the Appellate Division. The record discloses a failure on the part of plaintiff's counsel to comply with the order of the Appellate Division which directed a judgment to be entered in accordance with the order made thereat, and as required by the Code of Civil Procedure (sections 1345, 1355), thus leaving as the only judgment sought to be reviewed a judgment for costs. Even if we should affirm the judgment appealed from, such action would not enable the plaintiff to enforce the relief which he was awarded by the Appellate Division. The order alone is not a complete judgment but forms a part of the judgment roll. Judgment in pursuance of the order should have been perfected. It is not the province of this court to pass upon the questions involved in a case like the one at bar upon such a judgment as the one entered in this action. The decision of the Appellate Division herein is not reviewable by an appeal from the order *634 made thereat alone, but must be from the judgment entered upon the order of reversal.
The case is, therefore, remitted to the Supreme Court for such action as may be deemed proper.
HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Ordered accordingly.