Ackroyd v. Ackroyd

2 Abb. Pr. 380

• Court: New York Supreme Court
• Decided: June 15, 1866
• Status: Published

Opinion

By the Court.—Sutherland, J.

I do not say that in no supposable case, or under no supposable circumstances, an order denying a motion for an attachment for disobeying an order of the court, is or would be appealable ; but in my opinion in this case, and under the circumstances shown by the papers, the granting or not granting the attachment was entirely in the discretion of the judge, and the appeal should be dismissed, upon the ground that the order denying the motion for attachment was not appealable.

Though the judge may have thought that the defendant had not in fact complied with the direction in the order of reference as to the production of books and papers, and rendering the account, or an account, yet it certainly did not follow of course that an attachment should be granted.

On the motion for the attachment the question was whether the defendant had intentionally or inexcusably disobeyed or refused to comply with the order as to the production of the books, and the rendering of the account, or of an account.

If on that motion, or on a motion made specifically for the purpose, the court had instructed the defendant that he had not complied with the order as to the production of books and the rendering of an account, and had made an order directing the defendant to render an account, so far as he could from the books, which he did, or had it in his power to produce, and a motion had been made for an attachment, on the ground that the defendant had not rendered, or attempted to make out and render, any account, the question of appealability, and on the merits, would have been quite different.

I think the appeal should be dismissed, with costs.

Clerke, and Geo. G. Barnard, JJ., concurred.