On December 8th, 1887, an order to show cause was granted by a judge of this court, returnable on the 1st day of the January Term, why the remittitur from the City Court should not be recalled and the judgment of this court should not be amended so as to permit, upon terms, the trial of the issues of fact raised by the defendant’s answer. This order provided for a temporary stay of proceedings in the case.
Under date of December 9th, 1887, notice was given by the counsel for the appellant, and the order to show cause was- withdrawn and countermanded with the further notice that the remittitur should be recalled from the City Court of New York, and that the same and the judgment of this court be amended so as to direct the trial of this action upon its merits in the court below'. By a further and later notice (December 16th, 1887), the appellant’s counsel moves upon *437the appeal hook and all the proceedings in the case for leave to appeal to the Court of Appeals and for other and further relief. It appears by the papers submitted that, prior to the service of the notice of this application, the judgment of affirmance by this court was duly filed in the court below; and by an order therein entered was made the judgment of that court.
Until the remittitur is returned to this court upon a proper application, we are without authority to entertain the present motion. The last notice of motion (December 16th, 1887) was for leave to appeal to the Court of Appeals, upon which, in the absence of the appeal record and in the face of the final judgment already entered, we are unable to grant the relief sought (People ex rel. Smith v. Village of Nelliston, 79 N. Y. 638).
The motion must, therefore, be denied.