Jackson v. Smith , 138 N.Y.S. 914 ( 1912 )

Per Curiam:-

The order submitted by the appellant is in the proper form. This order, however, is not a judgment but an order of the Appellate Division modifying a judgment of the court below, and the order includes in it the form of the judgment as modified to be entered. This order necessarily has to be filed in the Appellate Division, and a certified copy of the order annexed to the record transmitted to the clerk of the Supreme Court, and on this order the clerk is required to enter a judgment in pursuance of section 1355 of the Code of Civil Procedure. The Court of Appeals has held that the only appeal to that court was from the judgment entered in the office of the clerk of the Supreme Court based upon the order of the Appellate Division. The signature of the judge to the order is a mere direction to the clerk to enter it. That direction may be in any form, but until an order or judgment is actually entered by the clerk it does not become the order or judgment of the court, and the order of the Appellate Division setting out the form of the judgment that the clerk of the Supreme Court is to enter is a direction to him as to the proper judgment to be entered as the final judgment in the action. The city of New York, not being a party to the action, and intervening simply for the purpose of assisting the court in coming to a correct determination of the question presented, is not liable for costs. The appellants, however, are entitled to costs against the plaintiff both in this court and in the court below, for it was necessary for them to intervene to prevent a sale of their interest in the property which, as they were parties to the action, would be binding on them. The order is settled in accordance with the foregoing memorandum. Present — Ingraham, P. J., McLaughlin, Laughlin, Miller and Dowling, JJ. Order settled.