| New York Court of Chancery | Aug 7, 1838
The complainant’s solicitor is clearly wrong in supposing that he .has a right to proceed and carry into effect a decretal order, which he has himself appealed from, at the same time that he is proceeding on the appeal to reverse that order and to confirm the original report of the master. The two proceedings are wholly inconsistent with each other, and either the one or the other must be abandoned. If the appellant succeeds in the appeal after he has collected the damages and costs which he would be entitled to under the order appealed from, the defendant will have been uselessly subjected to the costs of two references, and of two decrees, instead of one. Where an appeal is effectual to stay the proceedings of the respondent upon the order or decree appealed from, it seems to follow that it is either irregular for the appellant to proceed under such order or decree, or that his proceeding under it, subsequent to the appeal, will be considered as an abandonment of the appeal.
If the respondent in this case, in his notice of the present application, had asked for a dismissal of the appeal or that the appellant should be compelled to elect, or if he had asked for such order as he might be entitled to upon the facts stated in the affidavit of his solicitor, I should have had no difficulty in applying the proper remedy. But as the proceedings which he seeks to set aside, on this notice, are proceedings before the vice chancellor upon the order appealed from, and not proceedings before the chancellor upon the appeal, an application to set aside such proceedings upon the mere ground of irregularity, is more properly addressed to the judicial officer before whom the alleged irregularity has taken place. I am also inclined to think that the vice chancellor has jurisdiction to compel the appellant, either to abandon his proceedings under the order appealed from or to consent to dismiss his appeal.
The present motibn must be denied, but without costs; and without prejudice to any other application which the respondent may be advised to make, either before the chancellor or the vice chancellor of the fourth circuit.