John M. Helck, as Administrator, etc., Appellant, v. Henry Reinheimer et al., Impleaded, etc., Respondents

John M. Helck, as Administrator, etc., Appellant, v. Henry Reinheimer et al., Impleaded, etc., Respondents. (Argued April 14, 1890; decided April 22, 1890.) An order of General Term granting a motion to vacate an order and judg ment for costs, which was irregularly entered, when by the terms of the order it is made without prejudice, however, to an application at Special Term for costs, is not a final order, and so, not appealable to this court. Appeal from order of the General Term of the Supreme Court in the third judicial department, made February 7, 1888, which reversed an order of Special Term denying a motion to vacate an order and judgment for costs entered herein upon a remittitur from this court, and which granted said motion. The ground of the motion was that the order and judgment were not authorized by the remittitur, and that the order was irregularly entered. The order of General Term contained this provision: “ But this order shall be without prejudice to any application by the plaintiff to the Special Term for costs of this action incurred before appeal to the General Term,, and to this court for costs of the appeal to this court.” The following is the mem. of opinion: “We dismiss this appeal because the order is not final. It leaves the right involved to the future action of the Supreme Court, and having been irregularly entered without the authority of that court was liable to be vacated, and we must either affirm the order or dismiss the appeal. The latter remedy will leave the ultimate question open to the privilege conferred by the General Term, since the remittitur from this court awarded costs of the appeal in this court, and went no further than that.” John F. Anderson for appellant. T. F. Bush for respondents. [MAJORITY — Per curiam mem.] Per curiam mem. for dismissal of appeal. All concur. Appeal dismissed.