Gracie v. Freeland — 3 Denio 609

Majority

p. 609

Gracie vs. Freeland and others.

Headnote

An appeal to the court of appeals cannot be taken from a decree or order made m a cause in equity at a special term of the supreme court.

Appeal, by the complainant, from an interlocutory order made in this cause, in equity, at a special term of the supreme court created by the present constitution, held in the city of New-York, before Mr. Justice Edmonds.

The appeal coming on to be heard, it was objected on the part of the defendants, that an appeal to this court could not be taken from an order or decree made at a special term. (Const. art. 6, §6 ; Stat. of 1847, p. 321, §§ 8, 10 ; Id. p. 322, § 11; Id. 325, § 20.) The party against whom a decree or order is made at a special term, it was said, should apply at a general term for a rehearing, pursuant to the twentieth section of the judiciary act, upon all the papers used at the hearing. Should a rehearing be denied, an appeal from that determination would lie, which would involve the merits of the decree made at the special term.

For the complainant it was insisted that the granting a rehearing was to a considerable extent a matter of discretion, and

p. 610

that if an appeal would not lie from such a decision as that under consideration, the right of review would be practically denied in a large class of cases.

The court, after time taken for consideration, held that no appeal could be taken to this court from an order or decree in equity made at a special term of the supreme court, and thereupon the appeal was dismissed.

In the following cases the judgments of the supreme court were affirmed:

Spencer v. Halsted, reported in 1 Denio’s R. 606

Graves and another v. McKeon, 2 Id. 639^[1]

Coddington v. Davis, reported in this vol. ante, p. 16

The People v. Adams, “ 190

The People v. Charles, “ 212

Delamater v. Pierce, “ 315

In the following cases, decrees of the court of chancery were affirmed :

Frazer v. Western and others, reported in 1 Barb. Ch. R. 220

Moehring v. Mitchell, Public Admr. &c. Id. 264

McCosker v. Brady and others, Id. 329

Hoes and others v. Van Hoesen , Id. 379

Partridge v. Menck and others, 2 Id. 101

In the following case the decree of the court of chancery was reversed:

Dias and others v. Bouchaud, Exr. &c., and the United States, reported in 10 Paige, 445.

(a) (a) The judgment of the supreme court was affirmed in this case, on the ground that the declaration in the justice’s court was in trespass de bonis asportatis, and •not for trespass on lands. Taking that view of the case, as the court of appeals did, .the question of jurisdiction decided by the supreme court did not arise.