Quinn v. Winter

McAdam, C. J. The judgment of April 4, 1889, was regularly entered by the defendant, for there could be but one judgment in the action. Johnson v. Farrell, 10 Abb. Pr. 384. By the reversal of the general term order, its entire effect was wiped out, as if it never had an existence, (Murtha v. Curley, 3 Civ. Proc. R. 266, 92 N. Y. 359;) and, as a necessary consequence, the judgment directed by the special term, and entered April 4,1889, was eo instanti reinstated. Ho appeal was taken from the verdict or the “six cent” part of the judgment, and consequently the foundation upon which the right to costs depended was not and could not be disturbed. The appeals taken had reference to right to costs, a mere incident of the recovery, and to that only. Under the circumstances, the defendant was bound to enforce the judgment entered by him April 4, 1889, in the usual manner of enforcing judgments, and was bound to collect the costs subsequent to that judgment by execution in the nature of a precept, founded solely on the order of reversal. An entry for judgment for costs, in their nature interlocutory, is wholly unauthorized; for they are practically motion costs, within the meaning of section 779 of the Code. In re Brasier, 2 How. Pr. (N. S.) 154. The defendant erroneously adopted the practice which prevails on appeals from judgments, but which is inapplicable to appeals from orders. It follows that the judgment entered by the defendant December 6, 1889, being wholly unauthorized by the practice, must be set aside. The execution issued upon it falls with the judgment.