Clapp v. Atterbury — 25 N.Y. St. Rep. 808

Majority

p. 808

Milan C. Clapp, App’lt, v. John C. Atterbury, Resp’t.

(New York Superior Court, General Term,

Filed June 28, 1889.)

Headnote

1. Appeal—What reviewable.

On appeal from an order denying a motion to vacate the former order, such former order is not before the court, and cannot be reviewed.

3. Same.

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

Appeal from an order denying the motion of defendant to vacate an order of the court.

Norman T. M. Mellis, for- app’lt; Philip Carpenter, for resp’t.

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 tor 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 was supposed that error existed, a refusal 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 ten dollars’ costs.