
    Thomas Butler, plaintiff, vs. George W. Niles, defendant:
    1. After the trial of the issues in an action, an adjudication was made by a justice of this court, at a special term, allowing the plaintiff flee days after notice thereof, to sign and file a stipulation containing certain matters, and in case the
    « plaintiff should refuse to sign such stipulation, it was adjudged that the com- ' plaint should be dismissed, &c. Held that this adjudication, not being final until the expiration of five days after it was "pronounced, there was not, at the time it was, made, a final determination of the rights of the parties, from which on that day an appeal could have been taken; and that consequently it was irregular to file a judgment record in the action the same day.
    2. That in analogy to the old common law practice, the direction was a judgment nisi, or according to the equity practice, a decretal order, not & final decree.
    
    3. Seld, also, that after the expiration of the time given to the plaintiff, and noncompliance with the direction, no further action on the part of the court or of any judge thereof, was necessary; the defendant becoming entitled, by the very terms of the order, to judgment of dismissal.
    4. An order extending the time for the plaintiff to sign and file a stipulation • which he has omitted to do, “ in furtherance of the justice of the case,” rests in ' the discretion of the court; and as it involves no substantial right, is not renewable upon appeal. It does not belong to either of the classes of orders which, according to the Code, may be re-examined at the general term.
    (Before Moncrief, Garvin and McCunn, JJ.)
    Heard December, 17, 1864.
    This is an appeal from an order made by Chief Justice Eobertson, enlarging the time for the plaintiff to make and file a certain stipulation, for five days.
    
      A. R. Dyett, for the appellant, (defendant.)
    
      D. M. Porter, for the respondent, (plaintiff.)
   By the Court, Monell, J.

On the 9th November, 1863, •after a trial of the issues in this action, a direction and adjudication was made by a justice of this court, sitting at a special term, without a jury, which, among other things, allowed the plaintiff five days, after notice thereof, to sign and file a certain stipulation, and in case the said plaintiff shall decline or refuse to sign and file such stipulation,” it was adjudged that the complaint be dismissed, &c. It seems a judgment record in the action was filed the same day. This was irregular. There was not, on the 9 th November, 1863, a final determination of the rights of the parties to the action, from which, on that day, an appeal could have been taken to the general term. The adjudication was not final until the expiration of five days after it was pronounced. In analogy to the old common law practice, the direction was a judgment nisi, and to the equity practice which would call the adjudication a decretal order, not a final decree. (1 Hoff. Ch. Pr. 560.)

After the expiration of the time given to the plaintiff, and non-compliance with the direction, I am of opinion no further action, on the part of the court, or of any judge thereof, was necessary. The defendant became entitled, by the very terms of the order, to judgment of dismissal. The justice who tried the issues either had made such a direction on the 9 th November, 1863, as finally to pass upon them, or he had not: if the former, there remained nothing for such justice to do; if the latter, then the proceedings had before him were a mistrial, and neither he nor any other justice could supply the defect; there could not necessarily be a new trial. The application to set aside or open the judgment, upon the allegation that two judgments had been given, as a ground of irregularity, must have been denied, because the justice, before whom the motion was made, and under which the order of 5th August, 1864, was entered, treated the application as if a stay of proceedings had been ordered, and finding proper occasion therefor, “ permitted” judgment to be entered. There was no adjudication of the issues in the action by the learned justice who disposed of the motion, under his order of August 5, 1864. Whether or not, upon the merits, some relief might, and should, have been given, depends upon the inquiry, first, whether the court had the power, and second, if it had, whether the case as presented by the plaintiff warranted its exercise, and what was done was fairly within its limits. The Court of Appeals, in The New York Ice Co. v. The North Western Ins. Co., (23 N. Y. Rep. 357,) said: It is suggested in the opposing papers that the judgment had become perfect and final before the motion was made,” and did not see the force of the suggestion. The judgment was perfect as soon as pronounced and entered. It would become final when the time for appealing should expire; * * It thought the power of the court (below) to modify or amend the judgment, could not he questioned. Even, if the time for appealing had expired, that court was by no means prepared to admit that this potver would be lost. At all events, so long as the judgment was subject to an appeal, it was subject to such corrections and modifications as the court, which pronounced it, might, in its discretion, think proper to make. The administration of justice would be extremely imperfect if this power did not exist.

If the power did exist, it is difficult to understand why its exercise should be questioned, the court having passed upon the matters of fact presented, and adjudicated upon their sufficiency, and it appearing that relief had been given to a party whose fault or omission was excusable, and intended to do justice to both parties as directed in the adjudication upon the trial. As the time within which the plaintiff could make and file his application had expired, “justice plainly required,” under the circumstances detailed in the papers, that he should be put in the same, or a similar, situation as at the trial, and as it was not done within the time limited at the time of the trial, “ it was just that the omission should be supplied after-wards.” Again, following the decision just freely quoted, we are of opinion that the general term had no right to entertain the appeal at all from the order made at special term. That order, in its substance and nature, simply allowed “ an opportunity for the plaintiff to sign and file his stipulation, which he had omitted to do in furtherance of the justice of the case.” “ Such orders rest in the discretion of the court which makes them, and they involve no substantial rights, and they are not reviewable upon appeal.^ They do not belong to either class of orders which, according5 to the Code, may be re-examined at the general term.” (§ 349 Code.) The learned judge, at the trial, could, with the same justice and propriety, have ..given three hundred, instead of five days, within which the stipulation should be signed and filed, and hence there was no substantial right of the defendant overlooked, or injustice done to him, when the time actually allowed having expired, and in the opinion of the court sufficient excuse was given for the omission to comply within such time, a further day was allowed within which justice should be extended to the parties in the action.

The order must be affirmed.  