Bryan v. Brennon

7 How. Pr. 359

• Court: New York Supreme Court
• Decided: January 15, 1853
• Status: Published

Opinion

By the Court, Barculo, Justice.

We are unable to discover any authority in the Code for this appeal. It can not be said that the reference involves the merits. It is merely determining the mode of trial; and no more involves the merits than an order changing the place of trial, which we have formerly held not to be appealable.

But the defendant contends that the complaint does not state a cause of action, and that the city court has passed otherwise upon that question, in ordering the reference. It is a sufficient answer to that argument to say, that this is not the proper time, to raise that objection. If the complaint is bad in that respect, advantage may be taken of it in various stages of the suit, but not on an appeal from an order of reference, otherwise not appeal-able. The appeal must be dismissed, with $10 costs.