Clapp v. Atterbury

57 Jones & S. 579, 25 N.Y. St. Rep. 808

Opinion

Per Curiam.

The only ground on which the appellants could have claimed the order should have been vacated, was that the order was erroneous. It was not claimed that the former order was made without notice or that there was any irregularity of practice as to it. The order was valid until reversed for error. The learned judge below was not bound to hear an appeal from the order. Or, if he still thought there was no error, even if it were supposed that error existed, a refusal to vacate was not injurious to appellant, for he, unless there had been laches, could appeal and have the erroneous order reversed. And further this court cannot proceed to inquire if there were error in the order so long as it is not brought before it upon an appeal.

Order affirmed, with $10 costs.