Porter v. Parmly — 38 N.Y. Super. Ct. 490

Majority

p. 490

MARY E. PORTER, Executrix, &c., Plaintiff and Respondent, v. ELEAZAR PARMLY, Defendant and Appellant.

Before Monell, Ch. J., and Curtis, J.

Decided January 4, 1875.

Headnote

APPEAL FROM ORDER.

An appeal to the General Term from an order should be taken-within thirty days after written notice of the order (Oode, % 333). .

In the case at har, an order of reference was made in the action, April 33, 1873, and a copy of the order served on this-appellant, April 33, 1873, and on the 14th of November, 1874, the notice of appeal was served. In the meantime, the hearing and trial of the action before the referee had been proceeded, with and terminated, and a report made and confirmed, after overruling exceptions to it taken by this appellant.

Held, That the appeal was without force and validity, because of being taken too late ; Also, That a party can not go on. with the proceedings under an order, and enjoy any advantage under it, without waiving bis right to an appeal from the order (Ubsdell o. Root, 3 Abb. Pr. Sep. 143; Radway n. Graham, 4 Abb. Pr. Sep. 463).

Motion to dismiss an appeal from an order.

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An order of reference was made on the 22nd of April, 1873, and on the following day a copy of it was served on the appellant. On the 14th of November, 1874, the notice of appeal from this order was served. In the meantime, the hearing before the referee had been proceeded with, a report made by the referee, and confirmed after overruling exceptions to it taken by the present appellant.

The plaintiff move's to dismiss the appeal from the order of reference.

Mr. Chandler, for the motion.

Mr. Vanderpoel, opposed.

This appeal should have been taken within thirty days after written notice of the order, in conformity with § 332 of the Code, so far as it is an appeal from the order of reference of April 22,1873. Whatever right the General Term may have to review this order of April 22nd, 1873, as an intermediate order, that right, can not be exercised in an appeal that is without force or validity.

It appears to be clearly settled, that a party can not go on under any order, and take an advantage from it, without waiving his right to appeal. The administration of justice could not be properly, conducted, if a party could proceed with a trial before a referee, and then, after an adverse result, be held not to have waived the right to appeal, but to be entitled to a,n appeal from the original order of reference, a year and a half after it was served upon him (Ubsdell v. Root, 3 Abb. Pr., 142 ; Radway v. Graham, 4 Abb. Pr., 468 ).

It is not claimed on the part of the appellant, on the hearing of this motion, that he was compelled to proceed with the trial in a mode that the law does not

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allow, nor are the papers upon which the order of reference was granted, before us.

The appeal from the order of reference of April 22nd, 1873, should be dismissed.

Monell, Ch. J., concurred.