Opinion
Argued June 20, 1876
Decided September 19, 1876
Henry L. Clinton for the appellants.
A.R. Dyett and Geo. F. Comstock, for the respondent.
If the merits of the application are reviewable upon this appeal, the order should be affirmed for the reasons assigned in the Supreme Court. But in any view of the case the order is not appealable to this court. If, as is claimed in behalf of the appellants, there has been no judgment perfected by the filing of a judgment roll so as to limit the time for an appeal and all that was done in that direction was a legal nullity, the substantial rights of the plaintiffs were not impaired, but the way was open to them to proceed as if no paper purporting to be a judgment roll had been filed, or any other proceeding taken after the entry of the decision by the Supreme Court. They had no clear legal right to require a paper by which their legal rights were not affected to be taken from the files of the court. Whether it should be removed from or remain in the pigeon-holes of the clerk, was discretionary with the court below. ( Bank of Genesee v. Spencer, 18 N.Y., 150; Foote v. Lathrop, 41 id., 358; Ives v. Memphis etc., R.R. Co., 58 id., 630.)
If the roll was not in due form, or the filing thereof was for any reason irregular, the granting or refusing the application was discretionary, and the order was not appealable. It affected merely the mode of procedure, which in all cases is within the control of the court of original jurisdiction. ( Arthur v. Griswold Co., 55 N.Y., 400.) It was the right of the party to waive the costs of the appeal to the General Term, and by perfecting a judgment upon the order of affirmance without inserting them, he did waive them, and the entry of the judgment was regular, notwithstanding costs were not included. There was no occasion to docket the judgment, as that is only required to create a lien upon lands. There was at least an attempted, if not an actual, compliance with the statute requiring an entry of the judgment in a "judgment book." The law recognizes no distinction between legal and equitable relief, nor requires different judgment books for different classes of actions. If there was technically an irregularity or a departure from the usual practice of the office in entering the judgment in one rather than another book, it was the province of the court below to disregard it or correct the error, or make such order as might be proper, but the action of that court was final.
The appeal must be dismissed.
All concur; ANDREWS, J., absent.
Appeal dismissed.