Patten v. . Stitt

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.