Bryan v. Brennon — 7 How. Pr. 359

Majority

p. 359

SUPREME COURT.

Bryan agt. Brennon.

Headnote

An order of reference is not appealable to the general term. The sufficiency of the complaint as to its containing a cause of action is not necessarily determined by an order of reference in the cause.

Dutchess General Term January 1853.

Judges Barculo, Brown and Strong. This was an appeal from an order of the City Court of Brooklyn. The cause being at issue, had been referred by that court to a referee to hear and determine.

We are unable to discover any authority in the Code for this appeal. It can not be said that the reference involves the merits. It is merely determining the mode of trial; and no more involves the merits than an order changing the place of trial, which we have formerly held not to be appealable.

But the defendant contends that the complaint does not state a cause of action, and that the city court has passed otherwise upon that question, in ordering the reference. It is a sufficient answer to that argument to say, that this is not the proper time, to raise that objection. If the complaint is bad in that respect, advantage may be taken of it in various stages of the suit, but not on an appeal from an order of reference, otherwise not appeal-able. The appeal must be dismissed, with $10 costs.