Buffalo & Allegany Valley Railroad v. Johnson

New York Court of Appeals

Buffalo & Allegany Valley Railroad v. Johnson

42 N.Y. 215, 1870 N.Y. LEXIS 43

DecidedMarch 17, 1870

StatusPublished

This text of 42 N.Y. 215 (Buffalo & Allegany Valley Railroad v. Johnson) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Buffalo & Allegany Valley Railroad v. Johnson, 42 N.Y. 215, 1870 N.Y. LEXIS 43 (N.Y. 1870).

Pincite

Opinion

Lott, J.

The order, from which the appeal in this action is taken, is not appealable.

Assuming that it affects a substantial right, it does not determine or discontinue the action. It enables the plaintiff to effect a discontinuance by the payment of the costs and disbursements necessary for that purpose, but does not of itself operate as a discontinuance.

If such payment is not made in proper time, the defendant will be at liberty to proceed in the action.

The appeal should be dismissed with costs.

For dismissal of the appeal, Lott, Sutherland, Smith and Ingalls, JJ., and Earl, Oh. J.

For affirmance, Hunt, Foster and Grover, JJ.

Appeal dismissed with costs.

Wm. O. Johnson, for the appellant.

Sherman S. Sogers, for the respondent.

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