
    Hugh Hill and Eugene Miner Taylor, Copartners, Doing Business Under the Firm Name and Style of Edward Hill’s Son & Company, Respondents, v. Henry C. Muller, Defendant, and Charles Muller, Appellant.
    (Supreme Court, Appellate Term,
    March, 1907.)
    Motions and orders — Orders — Settling order — Destroying one of two¡ different orders inadvertently signed but not entered and adopting, the other.
    Where, upon the affirmance of an interlocutory judgment overruling a demurrer, the plaintiffs enter a final judgment in the action, and, upon the granting of defendant’s motion to vacate the same, both parties hand up proposed orders for signature and the judge inadvertently signs both and they are filed in the clerk’s office without having been entered, and, thereafter, the justice, after examining both orders in the presence of plaintiffs’ attorney and a representative of defendant’s attorney, destroys defendant’s order, a denial of defendant’s motion to have filed and entered a copy of the destroyed order with the same legal effect as the original order is proper and the order entered thereon affecting no substantial right is not appealable.
    Defendant could have made a motion to resettle the plaintiffs’ order and if, by a denial of such motion, he was injured in a substantial right, he could have appealed from the order entered thereon.
    Appeal by the defendant Charles Muller from an order of the City Court of the city of Hew York.
    
      John Oscar Ball (A. P. Bachman, of counsel), for appellant.
    Chester A. Bayles, for respondents.
   Hendrick, J.

This is an appeal from an order of the City Court denying the defendant’s motion to have a copy of a destroyed order, filed in the clerk’s office of that court, in the place and with the same legal' effect as the original order, which had been. filed, but was destroyed under the following circumstances: The Appellate Term affirmed an interlocutory judgment overruling a demurrer, and by its first order failed to grant leave to the defendant to plead over. Subsequently the defendant, having moved for a resettlement of such order, the Appellate Term made an order granting leave to the defendant to plead over upon payment of the costs of the appeal and the costs in the court below within six days. It appears that the plaintiffs, after the affirmance of the judgment overruling the demurrer by the Appellate Term, had entered a final judgment in the action against the defendant; and this judgment the defendant, after the entry of the resettled order permitting the defendant to plead over, moved to vacate. This motion was granted, and both parties handed up orders for signature. By inadvertence the justice hearing the motion signed both orders and they were both filed in the clerk’s office, but it does not appear that either order had been entered. The defendant’s order, after reciting the preliminary facts, reads as follows: “ It is ordered that the motion be and the same is hereby granted in all respects, that the final judgment * * * be and it hereby is vacated and that the clerk of this court be and he hereby is directed to mark on the judgment docket of this court that the aforesaid judgment is vacated by order of the court.” The plaintiff’s order, so far as we need consider it, reads as follows: It is ordered, that the motion to vacate the final judgment * * * be and the same is hereby granted and the stay obtained by Chas. Muller be and the same is hereby vacated.” The stay referred to in the order was one obtained by the defendant staying the plaintiff pending a motion made by the defendant in the Appellate Division for leave to appeal. After the orders were filed, the attention of the justice was called to the fact that he had signed two orders; and, as appears from the opposing affidavit used on the motion (which statement contained therein the court below had a right to believe), he then, in the presence of the plaintiffs’ attorney and a representative from the defendant’s attorney’s office, sent for the two orders and, after examining them, declared that the plaintiffs’ order was the proper order and that he never intended to sign the order proposed by the defendant, and thereupon destroyed the defendants’ order and instructed the representatives of the parties there present to inform the clerk that he had so destroyed it. To this action it does not appear that the defendant’s representative offered any protest or exception and the act of the justice was evidently done in perfect good faith, although the proper practice would have been to have made an order vacating the defendant’s order. It will be observed that the two orders in their effect are substantially alike. The defendant’s order, so far as it directs the clerk to vacate the judgment, contains the proper recitals and the plaintiffs’ order is deficient in that respect; but wc think there can be no question but that, under the recital in the plaintiffs’ order, the clerk would have been justified in entering opposite the judgment on the docket of judgments, the words vacated by order of the Court,” upon request being made of him so to do. So far as the order of the plaintiffs vacating the stay is concerned, it is undoubtedly correct. We fail to see, therefore, how the denial of the defendant’s motion to have filed and entered a copy of the destroyed order affects a substantial right of the defendant; and, unless it does so, it is not an appealable order. Code Civ. Pro. § 1342. The defendant had. an ample remedy to correct the plaintiffs’ order, if he so desired and considered it essential, by a motion to resettle the same; and, if such motion was denied, and the defendant was injured in a substantial right by such denial, an appeal would lie.

We think the order now appealed from, under the cireumstances shown by the recital, is not an appealable one; and the appeal must be dismissed, with ten dollars costs and disbursements.

Gildebsleeve and Davis, J J., concur. .

Appeal dismissed, with ten dollars costs and disbursements.  