Cooley v. Cummings

Dugro, J. This is an appeal from so much of a judgment as awards costs in the action to the plaintiffs, and from a certificate granted by the trial justice, certifying that the title to real estate came in question on the trial. The certificate was conclusive upon the taxing officer, (Lillis v. O’Connor, 8 Hun, 280,) and he therefore committed no error in entering judgment so as to include costs. I do not believe that the granting of a certificate is such an intermediate order as is when specified in the notice of appeal brought up for review by an appeal from a final judgment, and therefore I think there can be no available exception to the granting of a certificate. To my mind, therefore, no ground for the reversal or modification of the judgment has been presented. If the certificate was improperly granted, it may be set aside on a motion made for that purpose. Barney v. Keith, 6 Wend. 555. It seems that no order granting the motion for a certificate was formally made or entered; and so, as the matter stands, the defendant’s remedy, if aggrieved, is by motion, and not by appeal. The appeal must be dismissed, with costs. Sedgwick, C. J., concurs.