Clapp v. Atterbury — 6 N.Y.S. 510

Majority

p. 510

Clapp v. Atterbury.

(Superior Court of New York City, General Term.

June 28, 1889.)

Headnote

1. Appeal—Review—What Review able.

An order denying a motion to vacate a former order for error therein, no irregularity or want of notice being alleged, will not be disturbed on appeal.

•8. Same.

On appeal from the order denying the motion to vacat^fche former order, such former order is not before the court, and cannot be reviewed.

Appeal from special term.

In a case in which Milan G-. Clapp was plaintiff, and John C. Atterbury was defendant, a motion was made by defendant to vacate an, order of the ■court. This motion was denied, and from the order denying it defendant appealed.

Argued before Sedgwick, C. J., and Freedman and Truax, JJ.

Norman T. M. Mellis, for appellant. Philip Carpenter, for respondent.

The only ground on which the appellant could have claimed the order should have been vacated was that the order was erroneous. It was not claimed that the former order was made without notice, or that there was any irregularity of practice as to it. The order was valid until reversed for error. The learned judge below was not bound to hear an appeal from the order; or if he still thought there was no error, even if it were supposed that error existed, a ref usal'to vacate was not injurious to appellant, for he, unless there had been loches, could appeal, and have the erroneous order reversed; .and further this court cannot proceed to inquire if there were error in the order, so long as it is not brought before it upon an appeal.. Order affirmed, ■with $10 costs.