Chittenden v. Missionary Society of the Methodist Episcopal Church

8 How. Pr. 327

• Court: New York Court of Appeals
• Decided: July 1, 1853
• Status: Published

Opinion

Mason, J.

I am of opinion that this appeal should be dismissed for two reasons. In the first place no appeal can be had while this reference. is pending, the policy of the Code being to allow hut one appeal in the suit, and which cannot therefore be made till the suit is finally terminated against all the parties ,to it. (Code, §§ 11, 245, 328¿) Swarthout agt. Curtis, (4 Comst. R. 415, 416, 417.

But, secondly, the judgment or decree of the court below is not final, between the plaintiff and this Missionary Society, as the question of costs are reserved until the coming in of the report of the referee. This being one of the cases where the costs are, by section 306 of the Code, in the discretion of the court; a decree which is silent as to the costs, but reserves all other questions until the coming in of a certain report, must he deemed to have reserved the question of costs.

This appeal should he dismissed for the reasons above stated, hut as the practice does not seem to have been settled in such a case, I think it should be dismissed without costs.