Hiram B. Thurber et al., Appellants, v. John M. Chambers et al., Respondents

Hiram B. Thurber et al., Appellants, v. John M. Chambers et al., Respondents. (Argued January 26, 1875; decided February 2, 1875.) Where a decree in a partition suit awards costs, a notice of judgment served prior to the taxation and entry of the costs does not limit the time for appeal. A certified copy with a notice of the entry of such a decree was served, and thereafter the costs taxed and entered. Defendants served a notice of appeal more than thirty days after service of copy decree, which plaintiffs’ counsel refused to accept. The General Term, on motion, ordered that plaintiffs accept notice of appeal and that the same stand. Held, that said order, although perhaps unnecessary, affected no substantial right and was not appealable. Appeal from order of the General Term of the Supreme Court in the third judicial department, requiring plaintiffs to accept a notice of appeal from judgment herein, as of the day when said notice was served, i. e., June 24,1874, and that said appeal stand. (Reported below, 4 Hun, 721.) This was an action for partition. It was referred to a referee to take proof and report the same with his findings. Upon the coming in of his report, and on motion for judgment thereon at a Special Term, a decree was rendered, on the 14th Hay, 1874, which adjudged costs in favor of plaintiffs against five of the defendants. The same was entered on that day in the county clerk’s office. On the eighteenth of Hay, a certified copy thereof, with notice of entry, etc., was personally served on defendants’ attorneys. On the twenty-sixth of Hay, plaintiffs’ costs were taxed, and on the fifth of June were retaxed, and a memorandum thereof made at the foot of the judgment. On the twenty-fourth of June defendants’ attorneys served notice of appeal which was returned, on the ground [hat it was not served within thirty days after notice as required by section 332 of the Code. Whereupon the motion was made and order appealed from granted. Edward C. James for the appellants. The order was appealable. (Code, § 11, sub. 4; Frederick v. Taylor, 52 N. Y., 596; Leland v. Hathorn, 42 id., 547; Humphrey v. Chamberlain, 11 id., 274, 275; Wait v. Van Allen, 22 id., 319 ; Salls v. Butler, 27 How., 133.) Defendants’ admission of due service of the notice precludes them from objecting that it was premature. (Struver v. Ocean Ins. Co., 9 Abb., 23; Tallman v. Barnes, 12 Wend., 227.) It was not neces sary that costs should be taxed before notice. (Cotes v. Smith, 29 How., 326, 333; Bailey v. Stone, 41 id., 346; Morange v. Morris, 38 N. Y., 172; Curtis v. Leavitt, 1 Abb., 118; Blydenburgh v. Cotheal, 4 N. Y., 418.) The General Term had no power to grant the motion. (Sherman v. Wells, 14 How., 522; Fredericks v. Taylor, 52 N. Y., 595; Dwight v. St. John, 25 id., 203 ; Peet v. Cowenhoven, 14 Abb., 56.) B. H. Vary for the respondents. The appeal was regular. (Code, § 384; Lawrence v. F. L. and T. Co., 15 How., 57; People v. Haws, 34 Barb., 69; McMahon v. Harrison, 5 How., 360.) No notice limiting time to appeal can be served until costs are taxed and adjusted. (Sherman v. Wells, 14 How., 522 ; Champion v. Plym. Cong. Soc., 42 Barb., 446; McMahon v. Harris, 5 How., 360.) [MAJORITY — Per Curiam.] Per Curiam. We think the appeal was taken in time. The order of the General Term, therefore, although perhaps not necessary, alfected no substantial right, and the appeal to this court must be dismissed, with costs. All concur. Appeal dismissed.