162 N.Y. 253 | NY | 1900
The judgment in this case having been affirmed in this court (
The contention of the learned counsel for the plaintiff is that the judgment for costs entered below was unauthorized by the judgment and mandate of the Federal court and proceeded upon an erroneous construction of the scope and effect of that judgment as well as of the judgment of this court. We refrain from any consideration of these questions, since we think this court has no jurisdiction to entertain such an appeal. Appeals to this court may be taken as matter of right only "from judgments or orders finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance, judgment absolute shall be rendered against them." (Code, § 190.) The scope and meaning of this section has been fully considered and determined in this court. (Van Arsdale v. King,
When an appeal is taken to this court from a judgment, the form which it assumes in the court below, whether of affirmance, reversal, modification or dismissal, is not material. The courts below cannot deprive this court, in a proper case, of jurisdiction by dismissing an appeal and thus leaving the judgment complained of in force. In many cases that would have the same effect upon the rights of the parties as an affirmance. But the difficulty in this case is that there is no judgment of any kind, and we cannot review a mere decision or order which is but the evidence of the right to enter a judgment. It is just as essential for the purpose of a review in this court that a mere order or decision below dismissing the appeal should be followed by a judgment, as it is when a like order or decision is made at the trial dismissing the complaint. In such cases the action of the court is not perfected in the sense that it is in a condition to be reviewed in this court until a judgment in the usual form is entered. It follows that the appeal in this case is premature and should be dismissed, with ten dollars costs.
PARKER, Ch. J., BARTLETT, HAIGHT, MARTIN and VANN, JJ., concur; LANDON, J., not sitting.
Appeal dismissed.