Stevens v. Cent. Nat. Bank of Boston

• Decision Date: 13 March 1900
• Parties: STEVENS et al. v. CENTRAL NAT. BANK OF BOSTON et al.
• Court: New York Court of Appeals Court of Appeals

162 N.Y. 253

56 N.E. 628

STEVENS et al.

v.CENTRAL NAT. BANK OF BOSTON et al.

Court of Appeals of New York.

March 13, 1900.

Appeal from supreme court, appellate division, Third department.

Action by Aaron R. Stevens and others against Central National Bank of Boston and others. From an order (54 N. Y. Supp. 673) dismissing an appeal to the supreme court from a judgment for defendant (53 N. Y. Supp. 193), plaintiff appeals. Dismissed.

Edward Winslow Paige, for appellants.

Charles E. Patterson, for respondents.

O'BRIEN, J.

The judgment in this case having been affirmed in this court (144 N. Y. 50, 39 N. E. 68), was taken to the supreme court of the United States upon a writ of error, where it was reversed, with costs, in so far as it affected the Central National Bank of Boston and the parties represented by it in the litigation. 18 Sup. Ct. 403,43 L. Ed. 97. The case was remitted to this court by the federal court, with its mandate that further proceedings be had in the state courts not inconsistent with the decision. This court remitted the record with the mandate to the supreme court of this state, with directions to carry the judgment of the federal court into effect, without costs in this court. 50 N. E. 1115. The supreme court of this state at special term received the record, and took into consideration the form of the final judgment to be entered. Its decision is expressed in the form of an order regularly entered upon an opinion stating the principles upon which costs should be awarded to the bank and other parties who have succeeded in the supreme court of the United States. Upon this order and the record judgment was entered against the plaintiff for $3,851.10 costs. 53 N. Y. Supp. 193. The plaintiff appealed to the appellate division from the order of the special term and from the judgment. That court affirmed the order, and dismissed the appeal from the judgment. 54 N. Y. Supp. 673. The decision is expressed in the form of an order, and from that order, so far as it dismissed the appeal from the judgment, the plaintiff has appealed to this court.

The contention of the learned counsel for the plaintiff is that the judgment for costs entered below was unauthorized by the judgment and mandate of the federal court, and proceeded upon an erroneous construction of the scope and effect of that judgment as well as of the judgment of this court. We refrain from any consideration of these questions, since we think this court has no jurisdiction to entertain such an appeal. Appeals to this court may be taken as matter of right only ‘from judgments or orders finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance, judgment absolute shall be rendered against them.’ Code, § 190. The scope and meaning of this section has been fully considered and determined in this court. Van Arsdale v. King, 155 N. Y. 325, 49 N. E. 866. The order in question is not a final order in a special proceeding, nor an order...