3 Keyes 24 | NY | 1866
This notable action .is finally reduced to' a litigation between the plaintiffs and the defendants, the survivors of the firm of Ketchum, Rogers & Bement. When this case was before this court and decided, in December, 1865, it was finally disposed of as to all the parties except those now remaining upon the record. It appears, from the papers now submitted to us, that the firm of Ketchum, Rogers & Bement, not choosing to rely entirely upon their claims for damages set up in this action, growing out of their dealings with the agent of the plaintiffs, commenced an action to recover the same in the courts of the State of Connecticut.. On the 30th of January, 1855, the plaintiffs in this action obtained an injunction order therein, restraining the defendants therein, and, among (fibers, the defendants Ketchum, Rogers & Bement, from prosecuting any suit, action or bill in equity, for or on account of the certificates of stock,' or transfers of stock, or of the shares purported to be represented thereby, mentioned in the. complaint in this action. On application to the Supreme Court at Special Term, upon affidavits,' and other papers and proceedings, for an attachment against the defendants Ketchum & Bement, for an alleged violation of said injunction order, an order was made by the said Special Term bn the 23d day of March, 1865, directing that, unless the said defendants should amend their proceedings in said action pending in ■ the State of Connecticut, in the particulars specified in said order, and within the time therein mentioned, an attach
A brief reference to the provisions of the Code will clearly show that this order is not reviewable in this court. Subdivisions two and three of section eleveti. of the Code define the orders which are applicable to this court:
.1. An order, affecting a substantial right, made in an action when such order, in effect, determines the action and prevents a judgment from which an appeal might be taken.
2. An order which grants or refuses a new trial.
3. A final order, affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment.
This enumeration embraces all the orders appealable or reviewable in this court, except that, in an appeal from a judgment, as mentioned in subdivision one, this court is authorized to review am/ intermediate order involving the merits and necessarily affecting the judgment. It is unnecessary to inquire whether the order now appealed from is of the character described in this subdivision, as this appeal is not from a judgment, but from an order. We will inquire whether this order falls within either of the three classes above enumerated.
2. It is equally clear, that it is not an order which grants or refuses a new trial.
3. It cannot with any propriety be claimed to be a final order affecting a substantial right in a special proceeding. The order is made in the action, and not in a special proceeding, and, although it may affect a substantial right, yet it is not a final order. It is but the preliminary order to punish a party guilty of an alleged cgntempt'; and, upon the subsequent proceedings, it would be competent, and the party claimed to be in contempt might show, that he was not guilty of the offense. ¡Nor is the order one made upon a summary application in an action after judgment. Judgment had not been obtained in this action as between these parties, at the time this order was made, and therefore it was not made on an application after judgment. As the orders of the character referred to are all which this court is ■ authorized to review, and the order now appealed from is not one thus enumerated, it follows that this court has no jurisdiction to sustain this appeal and to inquire into the merits of the order, at'least not in the present stage of the action.
The appeal should therefore be dismissed, with costs.
All the judges concurring,
Judgment accordingly.
