By section 11 of the Code, which defines the cases in which appeals will lie to this court, they are confined to actual determinations of the various courts named, made at general terms thereof (See also § 333; Lake agt. Gibson, 2 Comst., 188).

The judgment appealed from in this case, was entered upon a remittitur from this court. No question is made, but that the judgment conforms to the remittitur. That remittitur controlled the court below, and a judgment in pursuance of it cannot be said to be an actual determination. The court below could not direct any different judgment. Its duty and power were simply to enforce the judgment of this court, as prescribed in section 12.

It can make no difference, that the judgment on the remittitur was first entered at special term, and that judgment *258affirmed. at general term. The remittitur was equally conr trolling upon both branches of the court, and left nothing to be determined by either.

Did the right of appeal apply to every judgment of whatever character, as claimed, it is evident that a litigation could never be brought to an end.

In this case, two questions were litigated in the court below. First, the defendants liability. Secondly, the rule of damages.

Numerous exceptions were taken at the trial. A general verdict was rendered for the larger amount of damages, and the smaller amount contended for by defendants, was liquidated by a special finding. The exceptions were heard in the first instance at general term. A final judgment was there rendered in December, 18(55, overruling the defendant’s exceptions, and refusing a new trial, but ordering judgment on the verdict for the smaller amount of damages in conformity with the special finding. From this judgment the defendants took, no appeal.

If they desired to be in a condition further to litigate the question of their liability, or the correctness of the rulings at the trial, with a view to a new trial, it would seem that they should have appealed, lest they might be deemed concluded on those points, and confined to the single question of the amount of damages, and thus be subjected to the damages first assessed by the jury, if on the plaintiff’s appeal such damages should be adjudged to be recoverable as a legal consequence of the liaiblity established against the defendants.

The plaintiff appealed from the judgment, so far as related to the damages, but no appeal was taken by either party, from that part of the order which refused a new trial.

On that appeal this court did not order a new trial, but reversed the judgment of the general term, and ordered judgment on the verdict for the larger amount.

On the argument of the plaintiffs appeal, before the commission of appeals, the question arose, whether the defendants *259could be heai'd on the points relating to their liability, and their exceptions taken at the trial. Some of the members of the court were of opinion that they could, and it does not appear unreasonable that they should have been allowed to show, in answer to the plaintiffs claim, to a more liberal rule of damages, that he had established no right of action, and therefore was not entitled to any damages, or that evidence as to the damages claimed was improperly received or excluded.

But it is more questionable, whether on the plaintiffs appeal the defendants could have availed themselves of exceptions to other incidental rulings upon questions of evidence, or claimed a new trial by reason of such exceptions.

It is stated in the opposing affidavits, that the defendants were in fact heard upon all the points taken by them. But the decision of this motion cannot depend upon that fact. The question here is, whether the present appeal brings up for review any actual determination of the court below. If the defendants had a right to be heard upon all their points on the plaintiffs appeal to this court, and were here refused that right, in whole or in part, the general term could not correct that error, or for that reason refuse to obey the mandate of the appellate court. If they had no right so to be heard here, it was because they could only raise those points here by an appeal from the judgment of December, 1865.

If they were in fact heard, as alleged, upon all their points, and they were determined against them by the appellate court, they cannot by the course now adopted obtain a rehearing in this court. In neither case was any point presented for adjudication by the court below on entering judgment on the remittuter. That judgment was in substance the judgment of this court, and I can find no ground on which an appeal from it can be entertained.

The motion should be granted with costs.