
    COURT OF APPEALS.
    McMahon and Wife, Respondents agt. Harrison, Appellant.
    An appeal from a judgment of the Supreme Court reversing an order of a surrogate, with costs, is premature, if brought before the amount of costs are ascertained and roll filed; whether a stay of proceedings is sought or not.
    
      March Term, 1851.
    Motion to dismiss an appeal from a judgment of the Supreme Court, by which an order of the surrogate of the city and county of New York, allowing letters of administration to issue to Harrison, was reversed, with costs both in the Supreme Court and in the Surrogate’s Court. The order for judgment of reversal bears date on the 8th of March 1851. Harrison appealed on the 13th of the same month. The costs had not then been taxed or ascertained and the judgment roll had not been filed.
    A. Lockwood, for Respondents.
    
    A. Mathews, for Appellant.
    
   By the Court,

Rüggles, Ch. J.

The appeal having been made before the amount of the costs were ascertained, and the judgment roll filed, it was premature. Until the costs are taxed or settled it can not be known, in cases in which the proceedings are to be stayed, in what sum the sureties are to justify; and it is better that the practice should be the same where the proceedings are not stayed as where they are. The party desiring to appeal may by motion and order in the court in which the judgment is rendered, compel the other to perfect his judgment, if he delays to do so. The appeal must therefore be dismissed, but without costs.  