Swarthout and others, Respondents, agt. Curtis and others, Appellants. COURT OF APPEALS. SWARTHOUT AND OTHERS, Respondents, agt. CURTIS AND OTHERS, Appellants. A decree at general term reserving no questions; and nothing to be done but to compute the amount due, was, under the former practice, a final decree, for the purpose of appeal. And under the Code such a decree becomes final, for the like purpose, after the referee's report is confirmed. Where the rule for confirmation is entered by default, at special term the merits of that order can not come under review upon the appeal. January Term, 1851. Bill filed in 1845 to set aside a satisfaction piece, and satisfaction of a mortgage, which had been entered of record, and to foreclose the mortgage. In September 1847, the Supreme Court, in special term, on pleadings and proofs, made a decree setting aside the satisfaction piece, and the entry of satisfaction of record; declaring the mortgage a valid security and directing a foreclosure in the usual form. It was referred to the county judge to compute and ascertain the amount due on the mortgage; and on the coming in and confirmation of his report, the premises were to be sold, and the purchaser let into possession; and the complainants were to have execution for the balance, &c. No questions were reserved. The decree was reheard and affirmed by the Supreme Court, in general term, in November 1849. The referee made his report of the amount due in March 1850, and in April following, on notice of motion for that purpose, the Supreme Court, in special term, confirmed the report of the referee by default-no one appearing to oppose. The defendants then appealed to this court from the special term decree of September 1847, the general term decree of affirmance in November 1849, and from the special term order of April 1850, confirming the report of the referee. SAMUEL STEVENS, for the respondents, moved to dismiss the appeal, on the ground that the decree for foreclosure, &c. was not final, because an account was to be taken of the amount due on the mortgage; and in taking the account, questions of pay Swarthout and others, Respondents, agt. Curtis and others, Appellants. ment might be litigated, and either party might except to the report, and thus bring the matter again before the court. He said there could be no appeal from the order of confirmation, because it was taken by default; and besides an appeal would not lie from the special term to this court. He cited Kane vs. Whittick, 8 Wend. 219. B. W. BONNEY, for the appellant, cited 6 Howard, 201; 13 Peters, 15; 3 Cranch, 179; 9 Paige, 622, 639. BRONSON, Ch. J.-As no question was reserved, and nothing remained to be done beyond computing the amount due on the mortgage, the decrce was final within the meaning of that term under the former practice, although questions might possibly arise on the reference which would bring the cause again before the court. But we think the decree was not final, for the purposes of an appeal, under the present practice. It is the policy of the Code to allow only one appeal to this court in the same cause; which can not be brought until after the suit is at an end in the court of original jurisdiction. There may be an appeal to this court from "a judgment," which is defined by the Code to be "the final determination of the rights of the parties in the action" (§ 11, 245). And when the appeal has been perfected, the clerk is directed to transmit to this court a certified copy of "the judgment roll," which can not exist until after the amount of the recovery has been ascertained (§ 328; and see Supp. Code, §2 sub. 3). But although the decree, at the time it was affirmed by the Supreme Court in general term, was not final within the meaning of the Code, so as to authorize an appeal to this court, we think it became final when the referee's report of the amount due on the mortgage was afterwards confirmed, and that the appeal which was then taken from the decree was authorized by law. There is undoubtedly a want of strict accuracy in calling the same decree final at one time, and not so at another; but the construction which we have given to the statute is the only one which will secure the right of review, and at the same time give effect to the manifest intention of the legislature to abolish the Blydenburgh, Appellant, agt. Cotheal, Respondent. former practice, which allowed several appeals in different stages of the same cause, and restrict the parties to one appeal, to be brought after final judgment. The merits of the order confirming the report will not come under review on the appeal, because it was taken by default, and at a special term; and an appeal will only lie from an "actual determination" made "at a general term" (§ 11). Still it will be proper to have that order before us, for the purpose of showing that the decree of the Supreme Court had become final before the appeal was taken. Motion denied. COURT OF APPEALS. BLYDENBURGH, Appellant, agt. COTHEAL, Respondent. An appeal brought on the same day that the judgment roll was filed, but pie vious thereto and before the hour for which the costs were adjusted, held good. January Term, 1851. B. W. BONNEY, for the respondent, moved to dismiss the appeal, on the ground that it was taken too soon. The court below gave judgment on the first day of November last; but the costs were not adjusted and the judgment roll filed until the fourth day of that month. The appeal was taken on that day before the hour when the costs were adjusted and the roll filed. J. W. BLYDENBURGH, in person, opposed the motion. BRONSON, Ch. J.-As a general rule the court does not inquire into the fractions of a day, except for the purpose of guarding against injustice (Small vs. McChesney, 3 Cow. 19; Clute vs. Clute, 3 Denio, 263). We think that a sufficient answer to this motion. Motion denied. Sheridan, Defendant in Error, agt. Mann, Plaintiff in Error. SUPREME COURT. 772425 SHERIDAN, Defendant in Error, agt. MANN, Plaintiff in Error. Where a judgment of the court below has been paid before writ of error brought, but not satisfied of record; on reversal thereof, the plaintiff in error can not enter a suggestion and award restitution of payment in his record of reversal without leave of the court. It is otherwise where the judgment below is satisfied of record. There the evidence of payment comes up with the record, and restitution is a matter of course. Monroe Special Term, Oct. 1850. This case originated in a Justice's Court, in which the defendant in error was plaintiff, and recovered judgment against the plaintiff in error for $16.97. The plaintiff in error brought a certiorari to the late Court of Common Pleas of Monroe county, where the judgment was affirmed in 1847. The plaintiff in error then brought a writ of error to this court where the judgment of the common pleas and that of the justice was reversed at the general term thereof held in Monroe county in June 1850. Prior to the bringing of the writ of error to this court, and prior to filing the record of affirmance in the common pleas, but after the attorney for the defendant in error had prepared such record, the plaintiff in error paid the attorney for the defendant in error the amount of the judgment before the justice with interest and the costs of affirmance in the common pleas, deducting $1.00 for filing the record. After the judgment of reversal in this court, the attorney for the plaintiff in error made up and filed a record of such judgment, in which he inserted an order for the restitution of the moneys. paid by the plaintiff in error upon the affirmance in the common pleas, in the words and figures following, viz: "And it appearing to the court here that said Robert J. Mann has paid to the said Michael Sheridan on said judgment so reversed, the sum of $36-01, on the 6th day of August 1847: Therefore it is considered that the judgment of the justice and the county court aforesaid for the errors aforesaid and other errors in the record and proceedings be reversed, annulled and altogether held for Sheridan, Defendant in Error, agt. Mann, Plaintiff in Error. nothing; and that said Robert J. Mann be restored to all things which he has lost by occasion of said judgment and that he recover of the said Michael Sheridan the sum of $31-01, with interest thereon from the said 6th day of August 1847, and also that he recover one hundred thirty-nine dollars seventeen cents ($139-17), adjudged to him before the said court by the justices thereof for his damages, costs and charges which he has expended in the prosecution of his writ of error, which sums, in the whole, amount to $169 18; and that said Robert J. Mann have execution therefor." The judgment for restitution was entered without an order of any court or judge, and without the consent of the defendant in error. On the 24th day of June last an execution was issued to the sheriff of Monroe county. The sum of $139-17, costs of the writ of error, was taxed ex parte, and upon retaxation upon notice, after the execution was issued, the sum of $34.73 was disallowed and deducted therefrom, and the sum of 93 cents added to the amount of interest on the $31.01, originally inserted in the bill, and the same was finally taxed at $105.37. Immediately after the retaxation of the costs, the attorney for the plaintiff in error served upon the sheriff of Monroe county a notice to deduct the sum of $34.73 from the amount to be collected on the execution as of the day judgment was rendered. There are other facts stated in the affidavits read on the motion, some of which are adverted to in the opinion which follows. A motion is now made that the judgment record and all subsequent proceedings be set aside, unless the plaintiff in error deduct from the execution $37-24, besides the sum of $34.73, disallowed on retaxation. E. IDE, for Defendant in Error. T. FROTHINGHAM. for Plaintiff in Error. WELLES, Justice. The plaintiff in error was irregular in awarding restitution for the particular sum alleged by him to have been paid in satisfaction of the judgment in the common pleas. The rule is that where the record of the inferior court, which is brought up by the writ of error, shows the judgment satisfied, restitution is a matter of course, and may be had by |