Bloodgood v. Erie Railway Co.

51 Barb. 273, 1868 N.Y. App. Div. LEXIS 31

• Court: New York Supreme Court
• Decided: April 6, 1868
• Status: Published

Opinion

By the Court, Ingraham, J.

I can see no ground upon which the appeals in these cases can be sustained. They are made from orders only temporary in their character, granted on ex parte applications, depending for their continuance on the decision of the court when the motions are heard, and forming in no way a decision such as is properly the subject of an appeal.

If during the temporary stay therein granted, the defendants desired to have the stay vacated or modified, they could apply to the judge granting the same for an ex parte order to that effect; or they could have moved before the justice at chambers, on notice, for such an order; but until a hearing has been had on the original order to show cause, or on such motion to vacate or modify the orders, no appeal will lie to the general term.

In The Bank of Genesee v. Spencer, (15 How. Pr. 142,) it was said: “ To get rid of an order improperly granted by a judge, the remedy is a motion to set it aside.”

In 5 How. Pr. (p.308,) the justice held that no appeal would lie from an ex parte order of a judge, made at chambers, to the general term.

The same rule was recognized in Watt v. Watt, (30 How. Pr. 345.) The judge says : “The order is not final, and therefore is not appealable.

[New York General Term, April 6, 1868.

Geo. G. Barnard, Ingraham and Cardozo, Justices.]

The appellants have referred to no authority sustaining their appeals, and they are so manifestly contrary to the intent of the Code in regard to such appeals, that it seems to be unnecessary to discuss the matter any farther.

The appeals in each of these cases, from these orders, must be dismissed, with $1Q costs.