John Patten, Respondent, v. William J. Stitt, Appellant. Same, Respondent, v. Same, Appellant.
Where, upon appeal to this court from an order granting a new trial in an equity case, the order is affirmed and judgment absolute ordered against appellant “ without costs to either party,” this disposes of all the costs in the action, and an insertion by respondent of costs in the judgment entered upon the remittitur is irregular.
A motion to correct the judgment is the proper remedy.
Whether an appeal from the judgment is proper in such case, quere.
(Argued December 17, 1872;
decided December 24, 1872.)
These were motions to dismiss appeals. The first appeal was from an order of General Term, affirming order of Special Term, denying defendant’s motion to correct judgment by striking out costs. The second appeal was from judgment of General Term, affirming judgment in favor of plaintiff, entered upon a remittitur from this court.
The action was an equitable one to obtain an injunction. It was decided below in favor of defendant. Upon appeal the General Term reversed the judgment and granted a new trial.
Upon appeal to this court the order was affirmed and' judgment absolute ordered against defendant, that they be perpetually enjoined, etc., “ without costs to either party.” Plaintiff taxed his costs below in the action, and the amount was inserted in the judgment entered upon the remittitur. Whereupon defendant moved- to correct the judgment by striking out the costs, and also appealed therefrom.
*592O. E. Lyon for the appellant.
Oha/rles Jones for the respondent.
Rapallo, J.
The decision of the court was very plain that the absolute and final judgment, ordered in pursuance of the stipulation on the appeal, should be without costs. The remittitur conformed to the decision in that respect. All costs which previously were dependent upon the event of the action were disposed of by this final result. The plaintiff was irregular, therefore, in inserting costs of the action in the judgment entered upon the remittitur, and the motion to correct the judgment should have been granted. The motion to dismiss the appeal from the order is therefore denied, with ten dollars costs of opposing the motion.
Whether an appeal from the judgment is a proper remedy in such a case it is not necessary now to decide. We have held that no appeal will lie from a judgment which conforms to the remittitur. When the judgment varies from the remittitur, a different question may be presented; but as the defendant can obtain all the relief to which he is entitled under the appeal from the order, we have concluded to dismiss the appeal from the judgment. As the question is novel and the proceedings were occasioned by the irregularity on the part of the plaintiff, the dismissal is without costs' to either party, either of the appeal or of the motion.
All concur.
Motion to dismiss appeal from order denied.
Appeal from judgment dismissed.