Adams v. Bush

2 Abb. Pr. 118

• Court: New York Supreme Court
• Decided: May 15, 1865
• Docket: No. 3
• Status: Published

Opinion

By the Court.

The defendants should have made their motion to correct the ease, in the court of appeals, as the cause is now in that court upon the appeal; and no. action which may be taken by this court can be of any service to the defendants unless the case is sent back for the consideration of this court.

*

Motion denied.

In the court of appeals the respondent moved at the June term, 1865, to dismiss the appeal: 1st. Upon the ground that the order appealed from is not appealable. 2nd. If the said order shall be deemed appealable, then, that this court send the case back to the supreme court to correct the files of their court, and the errors complained of by defendants in this motion, by striking out of the case the papers and matters, which it was alleged were not before the general term, that were before the special term, held by Mr. Justice Bockes.

The court held the order not appealable; ruling that they could not go behind the statement of one of the members of the court below, which was read by the respondent, that the order of dismissal was by reason of defect of papers.

Accordingly, the appeal to the court of appeals was dismissed.