Morgaet, J.
It is to be regretted that so much confusion should be produced by the careless manner in which the case is made up on the appeal. It is possible that some material fact or circumstance has been overlooked, owing to the indiscriminate mass of material thrown together without any apparent regard to the order in which the events transpired. The case contains at least three copies of the original decree of Chief Justice Robertson, and two attachments against Thomas Butler, in Tme verba, with the affidavits on which they were procured." These attachments were procured in supplemental proceedings upon a judgment in the Supreme Court, in favor of one Peter Morris, and have no relevancy whatever to the questions presented by the appeal in this action. The fact that Thomas Butler was under an injunction in supplemental proceedings in another court might have been stated, without setting out the proceedings at length, if it was a fact proper to be brought to the attention of the court in this suit. It will also be seen that there is some confusion in the proceedings, growing out of the fact that the decision of Chief Justice Robertson was drawn up and settled as early as July, was entered and certified by the clerk on the 11th of August, but was not actually incorporated in the judgment-roll, in the clerk’s office, until the 9th of November thereafter. In some of the subsequent proceedings the decree is treated as though it did not become effectual until it was copied into the judgment roll, and filed in the clerk’s office. But in the order appealed from, Chief Justice Robertson treats the judgment as having been made in July, when his decision and findings were drawn up and settled. I am aware that this confusion in the use of language is, in part at least, to be ascribed to the Code of Procedure, which attempts to abolish the distinction between proceedings at law and in equity; whereas, it is evident, from the very nature of the case, that judgments at law and in equity cannot be assimilated. The final decree of a court of equity takes effect when it is made and declared by the court, and the record, when made up, is only evidence of the decree, and simply proves it, without adding anything to its validity. It is not necessary even to enrol it, except in those cases where it is required to be enrolled as preliminary to some further action, which the statute authorizes to be taken upon it only after enrollment. In common law actions no judgment is pronounced, except by the record which is made, up in the clerk’s office.
From the language of Chief Justice Robertson, I conclude that the decree was settled by him and filed in July, 1863, though by mistake it is recited as having been made in July, 1864. It then became the business of the clerk- to enter it in the judgment-book; and, if it is to be regarded as a final decree, the clerk was required to make up the judgment-roll. His delay in entering it in the judgment-book did not affect its validity. (Lynch v. Rome Gas-Light Co., 42 Barb., 591.)
But, in my opinion, the decree was not final. Although it did not, in terms, reserve any questions, yet, in effect, no final judgment was pronounced. The decree left it open for either party to apply for final judgment. Instead, of a final judgment for the plaintiff, the final judgment was to be for the defendant, unless the plaintiff complied with certain conditions. True, it disposes of the merits of the .controversy, and in that respect was doubtless final, until modified or reversed; but it was necessary to bring the cause again before the court before it could be determined which party was entitled to the final judgment. And, according to the practice of the court in former times, when there has been a reservation of further directions, the court would not interfere upon the matter reserved in a summary way, but the cause must be set down for a hearing. (Daniel’s Ch. Pl. and Pr., 1201,1202.) The decree in question is, however, in effect, like a decree of foreclosure, with a direction that, upon paying the plaintiff what shall be reported due to him for principal, interest and costs, within six months after the master has made his report, at such time and place as the master shall appoint, the plaintiff shall reconvey the mortgaged premises to the defendant; but, in default of payment, the defendant shall be foreclosed of his equity of redemption. (Seton on Decrees, 130.) In such a case, a further order is necessary to complete the decree. (Daniel’s Ch. Pl. and Pr., 1204.) The same practice is to be observed in cases of decrees for the redemption of a mortgage (id., 1205), which usually direct that, upon non-payment of the mortgage, &c., the bill shall be dismissed. In such cases a final order is necessary. (Id). The power of the court to enlarge the time for the plaintiff’s performance of the conditions upon which he was entitled to final judgment cannot, I think, be questioned. (Id., 1206, and cases there cited.) The cause is still in court, and neither party is regularly entitled to a final judgment without a further application to .the court for that purpose, although I think it is not absolutely necessary to put the cause again on the calendar, that being a matter of form rather than of substance. Certainly another application to the court, and another order, is necessary to give the parties -the full and entire benefit of the judgment of the court; and, when that is necessary, the decree cannot, I think, be regarded as final. (Mills v. Hoag, 8 Paige, 19, Walworth, Chancellor.)
If, upon a tender by the plaintiff of the stipulation, &c., the defendants had acquiesced in the decree, it may be questioned whether a further order for absolute judgment was necessary. I think it was, if the parties desired to make the judgment conclusive as a bar in any future litigation.
When the plaintiff showed to the court, by satisfactory evidence, to be brought before it, that he had complied with the conditions imposed upon him by the decretal order, he was entitled to an order for judgment absolute in his favor, and not before. If, upon a tender by the plaintiff of the stipulation &c., the defendants refused to satisfy the judgment, or to perform what was required of them, it then became necessary for the plaintiff to apply for final judgment against them, requiring them, without further conditions, to satisfy the judgment against the plaintiff, and to execute the necessary papers to carry out the provisions of the decree. From the final judgment thus pronounced, the defendant would be at liberty to appeal to the General Term of the Supreme Court, and obtain a stay of proceeding, until a final determination in the appellate court.
If this is a correct view of the case, it will be observed that the defendants’ appeal is premature, even if the order appealed from involved the merits, which I think it-does not. It can only be reviewed by an appeal from the final judgment, which may yet be rendered in favor of the defendants instead of the plaintiffs.
I have no doubt, however, that the order of Chief Justice Robertson can be sustained upon the merits. It is not, by any means, clear that the plaintiff was in default, except in not bringing forward his evidence before Justice Honell, when the defendants applied for judgment. But it is entirely clear that the court may vacate an order or judgment, either for irregularity or as a matter of favor, within one year after notice thereof, if it appears to the court that such order or judgment was taken against him through his mistake, inad vertence, surprise, or excusable neglect. (Code, § 174.) The order of Justice Mohell was, doubtless, taken against the plaintiff under circumstances which fully justified the court in setting it aside, under the authority of section 174 of the Code of Procedure.
It is, however, claimed by the appellants’ counsel that Chief Justice Bobertsoh had no right to vacate the order of Justice Mohell. But it is apparent that the order granted by Justice Mohell did not involve the merits. It was made upon the basis of the decree, with a view to give it effect. If his order had varied the decree in any important respect, it would be subject to the same objection made by the appellants’ counsel against the subsequent order of Chief Justice Bobertsoh. In such case, the defendants’ application for judgment should have been made before the judge who pronounced the original decree. And in my view of the case, this was the proper course, as I think the decree could not be regarded as final until it was ascertained by the court whether the conditions upon which final judgment was to be given had been complied with or not. But, waiving this question, and treating the decree of Chief Justice Bobertsoh as final, the subsequent application for judgment was not a special proceeding, but simply a motion, like any other motion after judgment to set aside the judgment and allow the defeated party to interpose his claim or defense—a motion always addressed to the discretion of the court, and not the subject of review in this court. If it leads to a rehearing of the cause upon the merits, then, without doubt, it would be reheard before the same judge who heard it before. It is not necessary now to decide whether the court can grant a rehearing in an equity action, except on appeal to the General Term; but the authority to set aside the judgment or decree in a proper case, as a matter of favor, is expressly given by the Code. Begarding the proceedings before Chief Justice Bobertsoh as a motion after judgment, it must be governed by the same rule as ordinary motions. It involves only a question of practice. It is claimed by the appellants’ counsel, that the order in question involved a substantial right. It is said that the order prevents Lee from reaching,hy his, supplemental proceedings, the Francis Morris judgment against ¡Niles. ¡But these supplemental proceedings were taken pendente tite, and, of course, are subject to any decree which may be made in this action. I am of opinion, however, that the decree of July or August, 1863, although incorporated into the judgment-roll, so called, is not to be regarded as a final determination of the action, and for that reason the subsequent order of the same judge is , not appealable. Indeed, this last order is not final, although ■ it may lead to a final judgment in favor of the plaintiff, instead of the defendants. The question as to the correctness of the original decree is not now before us.
The order appealed from should be affirmed, with costs to the defendants.
All the judges concurring,
Appeal dismissed.