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In re Bristol

16 Abb. Pr. 397 Court Supreme Court, First District; General Term, English

Delivered by The Court (Sutherland, P. J., Ingraham and Leonard, JJ.)

Contents

Majority

p. 397
MATTER OF BRISTOL.
Supreme Court, First District; General Term,
September, 1863.

Headnote

Pasty.—Appeal.
Although a stranger to the action may have been allowed to apply to the court for relief against proceedings in such action, yet he has no right of appeal from an order denying his application.[1]
p. 398
Appeal from an order denying the prayer of a petition to have injunction modified.
In an action brought by Gorham D. Abbot against the American Hard Bubber Go. and others, the plaintiff obtained an injunction, which, among other things, restrained the defendants Poppenhusen & ELonig from paying notes to the amount of $27,000, which they had given to the company in payment of a transfer of property, effected, as it was claimed, in fraud of the rights of the plaintiff. The parties subsequently agreed upon an order settling the principles upon which final judgment should be rendered, but the actual'judgment had not been given. William B. Bristol, a trustee in insolvency of the Bubber Co., appointed by the Probate Court of Bethany, Connecticut, under the laws of that State, without becoming a party to the action, applied for a modification of the injunction » so as to allow these notes to be paid to him. His petition was denied (Ante, 184), and the petitioner appealed.
Thomas G. Shearman, for the respondent, claimed that the appeal should be dismissed. Ho one but a party to the action can appeal, even from an order denying his motion. (Martin a. Kanouse, 2 Ahbotts’ Pr., 390.) /
William E. Curtis, for the appellant.
In an equity suit like
p. 399
this, the court is ever open to be approached by any petitioner whose rights or duties are affected by the litigation. The comity of States, and the long-settled practice of the court, entitle him to relief from the injunction. (Sill a. Worswick, 1 H. Blackst., 665; Bird a. Caritat, 2 Johns., 259 ; Story’s Confl Laws, 414-421; Bank of Augusta a. Earle, 13 Pet., 590 .)

sustained the preliminary objection, and directed that the appeal be dismissed, with $10 costs.