Majority
p. 186Sherman et al. vs. Felt et al.
Headnote
The supreme court as now organized has the jurisdictional powers of the fate supreme court and court of chancery combined. It may therefore set aside a decree of the court of chancery for irregularity or other cause.A motion in the supreme court to set aside a judgment, either for irregularity or as a matter of favor, involves a question of practice merely, or is addressed to the discretion of the court. An appeal, therefore, to this court from the order made on such a motion will not lie.
An order granting or denying a motion to set aside a judgment or decree is not a “ final order aífecting a substantial right made upon a summary application afi ter judgment,” within the meaning of § 11, sub. 2, of the code of procedure.
Motion to dismiss the appeal. 'The cause was pending in the late court of chancery, and the bill taken as confessed in that court in March, 1847. Upon an ex parte hearing the chancellor granted a final decree, which was duly entered in May, 1847. In September, 1847, the supreme court, at a special term, on motion made by the defendants, set aside the order taking the bill as confessed and all subsequent proceedings, for irregularity. Subsequently a motion was made at a special term, on the part of the complainants, to set aside the order of the supreme court, on the ground, among others, of a want of jurisdiction to interfere with a final decree of the late court of chancery. The motion was denied. An application to rehear the last order was made at the general term of the supreme court in August, 1848, and denied. The complainants appealed to this court from the order refusing the rehearing.
N. Hill, Jr.,
for the motion, insisted that the order which the supreme court had refused to rehear involved a mere question of practice, and therefore that this court could not review the decision.
A. Taber,
opposed, insisted, 1. That the supreme court had no jurisdiction to set aside the decree of the chancellor, and therefore that the case did not come within the rule excluding appeals upon matters of practice addressed to the discretion
p. 187
of the subordinate court. 2. That the appeal was properly taken under § 11, sub. 2, of the code, giving an appeal from “ a final order, affecting a substantial right, made upon a summary application in an action, after judgment.”
Hill, in reply, denied that the supreme court had not jurisdiction. That court, he insisted, had the same powers in respect to decrees of the late court of chancery which the latter court possessed while in existence. (Const. Art. 6, §§ 3, 5, and Art. 14, § 5; Stat. 1847,p. 323, § 16.) The provision of the code cited, he said, applied only to cases where the summary application was based upon and conceded the validity of the judgment, and did not seek to set it aside for irregularity or other Pause.
were of opinion, 1. That the supreme court as now organized has the same jurisdiction as that court formerly had, with the addition of the equity jurisdiction of the late court of chancery, and consequently that it could entertain a motion to set aside a decree of the last mentioned court. 2. That the motion in this case involved a mere question of practice, or addressed to the favor and discretion of the court. 3, That the provision of the code referred to did not authorize the appeal to this court.
Appeal dismissed.[1]
1 No appeal lies from the refusal of the general term to open a default. Steven v. Glover, 88 N. Y. 611 . S. P. Foote v. Lathrop, 41 Ibid. 358.