Spaulding v. . Kingsland

1 N.Y. 426, 3 How. Pr. 337

• Court: New York Court of Appeals
• Decided: September 5, 1848
• Status: Published

Opinion

Bronson, J.

The 271st section of the code of procedure, which abolishes the old, and gives a new mode of review, did not at the first apply to any. adjudication in actions commenced before the first of July, when the code took effect. (§§ 8, 391.) But it was subsequently applied to proceedings after the first of July in suits which were pending before and on that day. (Supp. Code, §§ 2, 18.) The suit in which this order was made was not pending on the first day of July; it had been disposed of by a final decree before that time. And further, there has been no proceeding in the suit since the first of July: the order appealed from was made before that day. The appeal should have been in the form prescribed by the old law, the code having nothing to do with the case. (Mayor of New-York v. Schermerhorn, ante, p. 423.)

There is a further, and equally fatal objection, that the order was not one from which an appeal would lie. It was a question of practice addressed to the discretion of the chancellor. (F ort v. Bard, ante, p. 43.) The right to appeal, as well as the mode of proceeding, depended on the old law.

Appeal dismissed.