Miannay v. E.N.S Blogg

41 N.Y. 521

• Court: New York Court of Appeals
• Decided: December 5, 1869
• Status: Published

Opinion

Murray, J.

The order of the Special Term of Common Pleas appealed from, is in the following form: On reading and filing an affidavit and order to show cause in behalf of the defendant, and after hearing counsel for the respective parties, it is ordered that the defendant have liberty to renew the motion heretofore made by or for him, to discharge the order of arrest, upon the payment of ten dollars cost of this motion, provided the papers be served and costs paid, within, ten days after entry of this order; and that in the mean time, and if such motion shall be so made, then, until the decision thereof, the plaintiff’s proceedings to enter judgment are stayed. Such motion, if renewed, to be made upon the papers originally served on the defendant’s behalf, and those used upon the motion to renew, and proof of what took place upon the trial before Judge Beady, and a notice of motion to be served within the time .aforesaid.

This order affects-a substantial right of the appellant, and is an order in the action; and the order of stay therein, prevents a judgment from which an appeal might be taken, but it does not, in effect, determine the action; and that part of . the order which stays entry of judgment, is discretionary with the judge making it, and it is not the subject of appeal. This order is therefore not appealable under subdivision 2 of section 11 of the Code. It is not a final order made in a special proceeding, or upon a summary application after judg ment. It is therefore not appealable under subdivision 3 of said section.

It is very clear that this order is not appealable, and the appeal should he dismissed, with costs.

Woodruff, J., also read an opinion for dismissal.

All concurring for dismissal, appeal dismissed.