Siney v. New York Consolidated Stage Co.

| N.Y. Sup. Ct. | Feb 15, 1865

By the Court.—Clerke, J.

It is not necessary to consider whether Kerr and Smith have a right to be heard on this- appeal. Both the plaintiff and defendants, being alike dissatisfied with the order of the special term, have appealed. They bring the matter to the cognizance of the general term, and, if it is appealable at all, the court has entire control of the matter on appeal.

But this is not an appealable order. Before the person who was, in the first instance, appointed receiver, entered on his duties, and, indeed, before the appointment was consummated by the filing of the requisite bond, the judge, in the exercise of the same discretion which induced him to make the first nomination, reconsidered his action, revoked that nomination and substituted another person. It is of no consequence how or where he received any information which induced him to make the substitution. We think he exercised a discretion which cannot be controlled by us.

The appeal should be dismissed.

Ingraham, P. J., and Sutherland, J., concurred.