Dunham v. Nicholson

Headnote

An order setting aside an answer as frivolous, and that the plaintiff have judgment as for want of an answer, and a further order that the defendant submit to an examination on oath concerning his property, and the judgment to be given on the complaint, is not an appealable order to this court. It is not the final judgment in the action.

—This was a motion to dismiss an appeal, on the ground that the order was not appealable to this court.

The original order was made by Hon. Lewis H. Sandford, one of the justices of the superior court in the city of Hew York, at chambers, and is as follows:

(Title of the cause as above.) “ On reading the complaint and answer in this cause, and on hearing counsel for the respective parties; it is or-

dered, that the answer of the defendant be set aside as frivolous, and that the plaintiffs have judgment as for want of an answer. It is farther ordered, that the said defendant appear before one of the justices of this court, at their chambers in the City Hall of the city of Hew York, on the 19th day of December instant, at ten o’clock in the forenoon, and submit to an examination on oath concerning his property, and the judgment to be given on such complaint; and that the plaintiffs be at liberty to examine witnesses in said proceeding. “Lewis H. Sandeord.

“Hew York, December 14, 1848.”

An appeal was taken from this order, by the defendant, to the general term of the Superior Court; and on the 24th February, 1849, the appeal was heard, and an order entered by the general term, dismissing the appeal and affirming the order appealed from, with costs. From this last order, the defendant brought an appeal to this court.