82 N.Y. 366 | NY | 1880
After an appeal in this action to the General Term of the Superior Court, which resulted in an affirmance, provided the plaintiff should stipulate to reduce his judgment by a specified amount, the respondent filed his stipulation and the decision of the General Term, claiming that thereby he had duly entered his judgment. The defendant, insisting that it had not been duly entered and perfected, made a motion that the plaintiff be required to perform that duty, which motion, denied at Special Term, was granted on appeal from that order by the General Term. The argument of the original appeal, the decision thereon, and all the subsequent proceedings occurred since the enactment of the present Code which, therefore, governs the practice to be observed. While some of the earlier proceedings were taken under the old Code, it is easy to bear them in mind, and allow them their due weight without affecting the proper application of the provisions of the new Code to the proceedings taken after it went into effect.
The question presented is whether the steps taken by the plaintiff amounted to an entry of judgment of affirmance. He filed with the clerk a decision of the General Term signed by one of the judges. He did nothing else, and yet claims that his judgment was regularly entered. The Code requires *369 (§ 1236) that each interlocutory or final judgment shall be entered in the judgment book, and attested by the clerk. The provision for that attestation was not new but was founded upon a rule of the Revised Statutes (part 3, title 4, chap. 6, art. 2, § 11) which provided that no judgment should be deemed valid until the record thereof should be signed and filed. The Code further provides (§ 1354) that on an affirmance upon appeal the judgment-roll shall consist of a copy of the judgment, annexed to the papers on which the appeal was heard. It has been correctly decided that the memorandum handed down by the General Term of the decision of the appeal is not the judgment but simply the authority for an entry of the judgment. (Eno v. Crooke, 6 How. 462.) Waiving, therefore, all questions as to the sufficiency of the papers on file to constitute the basis of a judgment-roll on affirmance, it is sufficient to say that no judgment of affirmance has as yet been entered for the reason that what is called the judgment signed by Judge SPEIR is merely a memorandum of the decision of the General Term on the appeal. On filing that decision a formal judgment of affirmance should have been prepared which should have been entered in the judgment-book and then been attested by the signature of the clerk. A copy of this judgment annexed to the papers on which the appeal was heard would then constitute the judgment-roll on appeal. The Code imposes the duty of preparing such judgment-roll and furnishing it to the clerk upon the attorney for the party at whose instance the final judgment is entered (§ 1238). That duty was not performed in the present case. The General Term were, therefore, right in directing a proper judgment to be entered. There is no difficulty in so doing. If the papers now on file are those on which the appeal was heard, the copy of the judgment can be annexed to them. If they are not, the order appealed from has provided for the difficulty by allowing a copy of the printed papers used on the argument to be filed instead.
The order should be affirmed.
All concur.
Order affirmed. *370
