Cosgriff v. Dewey — 96 N.Y. Sup. Ct. 4

Majority

p. 4

Andrew Cosgriff and Others, Respondents, v. William Dewey, Appellant.

Headnote

A ruling of the trial judge — cannot be appealed from — how reviewed.

No appeal can be taken from an order made upon a ruling of the trial judge during the trial of an action. All exceptions to such rulings are presented by an appeal from the final judgment. An appeal from such an interlocutory order is premature and will be dismissed.

Appeal by tbe defendant, William Dewey, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Rockland on the 20tii day of November, 1894, denying the defendant’s motion to dismiss the complaint and directing a reference and appointing a referee.

A. S. Toin/phins, for the appellant.

Irving Brown, for the respondents.

This is an appeal from an order denying the motion of the defendant to dismiss the complaint upon the trial and apjiointing 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 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.

Pratt, J., concurred; Brown, P. J., not sitting.

Appeal dismissed, with costs.