People Ex Rel. Smith v. . Village of Nelliston

79 N.Y. 638 | NY | 1879

^* This case was accidentally omitted in its proper place. There is some uncertainty in the practice as to the precise time when this court loses jurisdiction of a cause brought here upon appeal: (Burkle v. Luce, 1 Com., 239; Martin v.Wilson, id., 240; Palmer v. Lawrence, 1 Seld., 455;Seacord v. Morgan, 17 How. Pr., 394; Wilmerdings v.Fowler, 15 Abb. Pr. [N.S.], 86; Cushman v. Hadfield, id., 109.) For the purpose of settling this uncertainty, we now hold that jurisdiction in this court is not lost until the remittitur has been filed in the court below, and that court has taken some action thereon.

This court, therefore, had jurisdiction to make the order now complained of.

We have carefully considered the matter of costs, and are of opinion that the respondents should not have costs. Their allowance was not in conformity with our actual decision. The costs on appeal here claimed were in a certiorari proceeding, and it matters not in what form the proceeding came before us,whether upon appeal from a judgment or from an order supersedingthe writ. As we have repeatedly decided, the costs are not allowable.

The motion should be denied.

All concur.

Motion denied.