Williamson v. Hyer

4 Wend. 170 | Court for the Trial of Impeachments and Correction of Errors | 1829

Lead Opinion

Mr. Justice Marcy

said he could scarcely conceive of a case in which an appeal from an order of the chanceilor refusing a re-hearing ought to be sustained. Such application is addressed purely to the discretion of the chancellor, and strong indeed must be the circumstances in such a case, to induce this court to sustain an appeal. Besides, it is very questionable whether an order refusing instructions to a master as to the discharge of his duties can be the subject of an appeal. The party is not remediless ; on the coming in of the report, if the master has omitted what he ought to have done, or on the contrary, has done what he ought not to have done, the party has a right to except to his report, and then the conduct of the master is properly inquirable into. For these reasons he was of opinon, that the appeal should be dismissed.

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Concurrence Opinion

Chief Justice Savage

concured, and especially for the reason, that if the appeal was sustained, the statute limiting appeals from interlocutory orders to fifteen days would be evaded. If the appeal from the order refusing a re-hearing is sustained, the previous orders are necessarily opened, being directly connected with the order last made.

This being the unanimous opinion of the court, the appeal was thereupon ordered to be dismissed with costs.