67 N.Y. 555 | NY | 1876
The only authority for this appeal must be found in subdivision 3 of section 11 of the Code, in which it is provided that an appeal will lie to this court "in a final order affecting a substantial right made in a special proceeding." The order here appealed from is not a final order. The petitioner filed his petition under chapter 338 of the Laws of 1858, asking that a certain assessment be vacated. The prayer of the petition, after a hearing at Special Term, was granted by an order duly entered. This order was subsequently, by an order at a Special Term, vacated, and this order was affirmed at General Term; but no order was made denying the prayer of the petition. The result of these orders was to leave the petition as filed in the court ready to be brought to a hearing again. The merits of the case had not finally been disposed of. The petitioner should have gone back to the Special Term and brought his case to a hearing again, and if there defeated, he could, after affirmance at the General Term, have brought his case here by appeal.
The appeal must be dismissed, with costs.
All concur.
Appeal dismissed.
