Chapman v. Hammersley

4 Wend. 173

Opinion

Mr. Justice Marcy.

The order made by the chancellor cannot affect the merits of the cause, and therefore is not the subject of appeal. It is aside of the merits, and relates only to the preservation of the property. The rights of the respective parties are not passed upon. Besides the sale will be public and open to the competition of the parties as well as strangers. The presumption is, the property will bring its fair value: the appellant, therefore, cannot be injured. In his bill, he himself asks for a sale of the property after the accounts are taken; why should he object to a sale now, inasmuch as the proceeds are to be brought into court to abide such order as the rights of the parties may require after they are ascertained 1 I am of opinion that the appeal ought to be dismissed.

This being the unanimous opinion of the court, the appeal was dismissed accordingly.