Case v. Turner & Davenport — 2 Wend. 627

Majority

p. 627

Case vs. Turner and Davenport.

Headnote

Application may be made to this court to vacate an order to stay proceedings, although the motion requires an examination into the merits of the case.

Motion to vacate an order to stay proceedings made by a commissioner, as preliminary to a motion to set aside a report of referees on the merits, the commissioner, on application, having refused to revoke the same.

B. H. Mace, for plaintiff.

E. C. Southerland, for defendants.

A motion of this kind is regular, although it requires an examination of the merits of the case. The court will not, however, vacate the order if there is probable cause for the order. In this case, we are of opinion, that there are no reasonable grounds for doubt as to the correctness of the report. The motion therefore is granted.