Atlantic Insurance v. Lemar

10 Paige Ch. 505, 1844 N.Y. LEXIS 522, 1844 N.Y. Misc. LEXIS 102

• Court: New York Court of Chancery
• Decided: January 4, 1844
• Status: Published

Opinion

The Chancellor

said, the reference of the demurrer to the whole bill to the assistant vice chancellor carried with it the whole case; and that if the demurrer had been allowed and the bill dismissed, the decree should have been enrolled and signed by the vice chancellor of the circuit where the cause was heard ; that the fifth and sixth sections of the act of March, 1839, authorizing the appointment of the assistant vice chancellor, were extended to this case by the amendatory act of 1840; and that the order, overruling the demurrer and directing the defendant to answer, being entered with the clerk of the first circuit, where the assistant vice chancellor held his court when the order was made, all subsequent proceedings thereon must be had before the vice chancellor of that circuit j in the same manner as if the cause had been referred to such vice chancellor and had been heard and decided by him. The chancellor also held that the appeal from a part of the order of the assistant vice chancellor did not remove the whole cause from before the vice chancellor of the first circuit; that the proceedings upon that appeal must therefore be remitted to such vice chancellor, and that this application, to extend the time to answer, must be made to him.

Order to remit the proceedings, and to refer the motion to the vice chancellor, to be heard and determined, accordingly.