Majority
p. 111Andrew Cosgriff et al., Resp’ts, v. William Dewey, App’lt. (Supreme Court, General Term, Second Department, Filed July 26, 1895.)
Headnote
Appeal—Interlocutory order.An order, denying a motion to dismiss the complaint and appointing a referee to take proof of the amount of rock removed by the defendant from premises described in the complaint, is interlocutory and, therefore, not appealable.
Appeal from an interlocutory order.
A. &. Tompkins, for app’lt; Irving Brown, for resp’ts.
This is an appeal from an order denying the motion of the defendant to dismiss the complaint upon the trial, and appointing a referee to take proof of the amount and value of the rock quarried or removed by the defendant from the premises referred to in the complaint, and of such material sold by him subsequent to the 1st day of March, 1892; also of the expenses of quarrying, removing, and selling the same, and of the profits thereof, and report to this court with his opinion. The order so entered is an interlocutory order, under which testimony is to be taken for the information of the court. Upon the coming in of
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that testimony the court will enter a final judgment. No appeal can be taken from an order made upon a ruling of the trial judge during the trial All exceptions to such rulings are presented by the appeal from the final judgment.
This appeal from the interlocutory order is premature, and must be dismissed.