Cruger v. Douglass — 2 N.Y. 571

Majority

p. 571

Henry D. Cruger vs. Douglass and others.

Headnote

A decree which provides for a reference, and reserves further directions until tha coming in of the report, so that the cause must be set down again for hearing., before all parts of the litigation are disposed of, is not final, and therefore cannot be appealed from to this court, although it adjudicates upon tne merits of the cause and disposes of the question of costs.

H. D. Cruger, in person, moved to dismiss the appeal,

on the ground that the decree appealed from was not final. The suit was pending in the court of chancery before either of the codes were passed, and the decree or order appealed from was made by the supreme court in November, 1848. The other facts are sufficiently stated in the opinion-of the court. He cited Harris v. Clark, ( 4 How. P. R. 78 .)

C. O’Conor, for appellants, cited 9 Paige’s R. 638; 6 Howard, 203 .

The decree appealed from settles all the leading points in controversy between the parties, but it directs a reference for the purpose of ascertaining what real and personal estate falls within the operation of the decree; and directs the referee to take and state an account between the parties. On the coming in and confirmation of the report, the amount found due to either party is to be paid by the other, “ at such time or times as shall be specified in said reportand the sum of five thousand dollars is to be forthwith paid to the respondent, on account of the moneys which may be payable to him under the' order or decree. The referee is to make his report with all convenient speed, “ to the end, that on the coming in and confirmation of his report, such further order and decree may be made thereon as shall be just.” It is also ordered, that neither party shall have costs as against the other; “ and that all further directions be reserved until the coming in of the said referee’s report.” Although the decree is final as to several particu

p. 572

lars, it evidently is not so as to all. “ Further directions” are reserved until the coming in of the report; and then “ such further order and decree may be made thereon as shall be just.” It will be necessary to set the cause down for a further decree on the coming in of the report.. The decree already made is not final; and the appeal was premature. The point was decided in Harris v Clark at the last July term.

Motion granted.

Cases cited

Harris v. Clark 4 How. P. R. 78 N.Y. p. 571