¶1The plaintiff and defendant Donnelly, both filed liens upon the premises mentioned in the complaint, and the plaintiff commenced this action to enforce his lien, making Vierkant the tenant, the Pitts the owners, and Donnelly defendants. The defendants all appeared and answered. The cause was then referred, pursuant to section 7, chapter 800 of the Laws of 1863, and tried before the referee. The referee made his report, by which he found that the tenant and owner were both liable to the plaintiff for the amount of his claim, and he ordered judgment against such defendants for the amount of such claim with costs; and he ordered judgment against the plaintiff for the amount of Donnelly's claim. This report was confirmed at Special Term, except that costs were awarded to Donnelly against the plaintiff. Judgment having been entered upon the report as thus modified, the Pitts appealed to the General Term of the Common Pleas as to so much of the judgment as was against them, and the *275 plaintiff appealed from so much of the judgment as awarded costs against him in favor of Donnelly. It appears that the cause was brought to argument at the General Term, and that then, after hearing counsel for plaintiff and for the Pitts, the judgment as to the Pitts was reversed. The plaintiff then appealed from this judgment of reversal to the Court of Appeals, serving his notice of appeal upon the attorneys for the Pitts and also the attorney for Donnelly. The cause was brought to argument in this court and the judgment appealed from was affirmed. Upon the argument, counsel for Donnelly appeared and claimed that the appeal to this court should be dismissed as premature, because the plaintiff's appeal to the General Term had not been disposed of. It is now claimed that no notice was taken by this court of this claim of Donnelly's counsel, and a motion is now made by the same counsel to dismiss the appeal, upon substantially the same ground, or for a reargument of the cause.
¶2It would probably be a sufficient answer to this motion that the remittitur has been filed in the court below and that the cause is not pending in this court. But if the exigency of the case seemed to require it we could, doubtless, request the remittitur to be returned to this court, and such request would probably be complied with.
¶3It was, doubtless, irregular to enter a judgment and appeal to this court until all the appeals from the same judgment to the General Term had been disposed of. But there was nothing in the record showing that they had not been disposed of. Judgment had been entered upon the decree of the General Term, and an appeal from such judgment had been taken to this court. No objection seems to have been taken to the entry of the judgment and no motion made to set it aside or vacate it; hence, this court had the right to suppose that plaintiff's appeal to the General Term had been settled, discontinued or disposed of, in some other way.
¶4If Donnelly's counsel claimed that the judgment of the General Term was prematurely entered, he should have *276 moved to vacate or set it aside, and not wait until after the cause was moved for argument upon the appeal before he makes the objection.
¶5This court has disposed of the only appeal before it, and the whole cause has been remitted to the Court of Common Pleas. If defendant Donnelly is entitled to any relief he must seek it there.
¶6There is another reason for denying this motion; Donnelly is not a party to the appeal to this court; he is in no way affected by it and has nothing to do with it; he cannot, therefore, be heard here.
¶7Motion denied, with ten dollars costs.
¶8All concur.
¶9Motion denied.