At the time the appeals by the respective parties were taken to this court, no judgment had been entered upon the decision and order of the Appellate Division and, therefore, said appeals were without authority or right.
While it necessitates what certainly appears to be useless labor, we think it wiser to recall our remittitur and to dismiss plaintiff's appeal, rather than to permit a judgment to be entered nunc pro tunc as of a date prior to that on which the appeal to this court was taken, even if the Supreme Court should feel willing to grant such application. We deem it best to avoid certain objections which there are to such a course, and to let plaintiff protect her rights by a new appeal when the judgment shall have been entered.
CULLEN, Ch. J., GRAY, WILLARD BARTLETT, HISCOCK, CHASE, HOGAN and MILLER, JJ., concur.
Motion of respondents that remittitur be recalled and that the appellant's appeal herein be dismissed granted, without costs either of said appeal or of this motion.
Appellant's motion for permission to apply for an order directing the entry nunc pro tunc of judgment upon the decision and order of the Appellate Division denied. *Page 531