J., it

Was decided that an order for an extra allowance, made by a single judge, before judgment, affects a substantial right, within the meaning of section 309 of the Code, and is the subject of appeal to the general term. The right to make an extra allowance being a matter of discretion on the part of the judge who makes the order, the court of appeals has no power to review the exercise of that discretion, or to examine as to the merits or amount of the allowance.

In Gracie agt. Freeland, 1 Comst., 231, January, 1848; Marvin agt. Seymour, 1 Comst., 535, November, 1848, BRONSON, J., it was decided that an appeal will not lie to this court from a decision of the special term; there must be a final determination of the gen eral term, to authorize an appeal to this court. And where a rehearing has been denied at the general term, an appeal will not lie to this court from that decision, unless the order made at the special term, if it had been confirmed by general term, might have been reeceed, or was the subject of review, by this court on appeal.

In Vandewater agt. Kelsey, 1 Comst., 533, 3 How., 338, November, 1848, BRONSON, J., it was decided that an appeal will not lie from an order granting, continuing and dissolv ing of temporary injunctions; they are matters resting in the discretion of the court of original jurisdiction. Nor will an appeal lie from an order of reference to ascertain the amount of damages occasioned by a temporary injunction.

In Anonymous, 4 How., 80, Court of Appeals, July, 1819, and in King agt. The Mer chants Exchange Bank, 1 Seld., 557, Dec., 1851, FOOT., J., it was decided that an appeal will not lie from an order denying leave to file exceptions to the report of a referee: it is clearly a matter of discretion.

In Hazleton agt. Wakeman, 3 How., 357, Court of Appeals, November, 1848, it was decided by the COURT, that an appeal will not lie from an order opening the biddings at a master's or referee's sale on the foreclosure of a mortgage, it is a matter of discretion in the court below.

In Wakeman agt. Price, 3 Comst., 334, April, 1850, PRATT, J., it was decided that an appeal will not lie from an order made on an application to set aside a receiver's sale for inadequacy of price, &c. It is a question of practice.

In Carpenter agt. Carpenter, 4 How., 139, Court of Appeals, May, 1849, it was decided by the COURT, that an appeal will not lie from an order made at general term setting aside a decree of divorce taken as confessed, and allowing alimony.

In Dunham agt. Nicholson, 4 How., 141, Court of Appeals, May, 1849, it was decided by the COURT, that an appeal will not lie from an order of the general term setting aside an answer as frivolous, and that the plaintiff have judgment; and a further order that the defendant submit to an examination on oath concerning his property.

In Duane agt. The Northern Railroad Co., 4 How., 364, 3 Comst., 545, June, 1850, BRONSON, J., it was decided that an appeal will not lie from an order at general term reversing a judgment obtained at the circuit, and ordering a new trial.

In Selden agt. Del. and Hudson Canal Co., 29 N. Y. R., 634, January, 1864, SELDEN, J., it was decided that orders denying motions to set aside a verdict and for a new trial, on the ground of surprise, &c., are not intermediate orders involving the merits and necessarily affecting the judgment within subdivision two of the eleventh section of the Code of Procedure. They are not intermediate orders, in any sense, but are entirely outside of the judgment. The motions for such orders are not summary applications after judgment, within the third subdivision of the same section, which only relates to orders that recognize the original regularity and validity of the judgment, and are based on facts and circumstances occurring subsequently. Motions of that kind are addressed to the discretion of the court below, and for that reason cannot be reviewed on appeal. In Hamphrey agt. Chamberlain, 1 Kern., 275, June, 1854, DENIO, J., it was decided that an appeal will not lie from an order of the general term setting aside a judgment and directing it to be redocketed, for the purpose of giving a new date to the judgment, so as to authorize an appeal, the time to appeal under the first entry having expired.

In New York Central Railroad Co. agt. Marvin, 1 Kern. 279, June, 1854, PARKER, J., it was decided that an appeal will not lie from an order of the supreme court made at a general term, confirming the report of commissioners to appraise the compensation to be made for lands proposed to be taken under the general railroad act, and refusing to direct a new appraisal.

In Sacketts Harbor Bank agt. Burwell, 9 How., 96, Court of Appeals, June, 1854, JOHNSON, J., it was decided that an appeal will not lie from a decision of the supreme court denying an application to order an amended answer to stand as part of the pleadings in the case. Whether such an order can be reviewed after judgment. Quere?

In Lansing agt. Russell, 4 How., 214, 2 Comst., 563, January, 1851, and in Candee agt. Lord, 2 Comst., 277, May, 1849, BRONSON, J., it was decided that an appeal will not lie from a decision of the chancellor awarding or refusing an issue to be tried at law, and the granting and refusing a new trial after a verdict upon an issue of fact, awarded by him. They were matters of discretion with the chancellor.

In Enos agt. Thomas, 5 How., 351, Court of Appeals, March, 1851, RUGGLES, J., it was decided that an appeal will not lie from an order made at a general term, denying a motion for a stay of proceedings on the judgment, and for liberty to move to set aside the report of a

referee, without an appeal, or for an order extending the time to appeal.

cretion.

Matters of dis

In McMahon agt. Harrison, 5 How., 360, Court of Appeals, March, 1850, RUGGLES, J., it was decided that on appeal will not lie from a judgment of the supreme court, by which an order of a surrogate allowing letters of administration to issue, is reversed with costs, both in the supreme court and surrogate's court, before the amount of costs are ascertained and the judgment roll filed. It is premature.

In Kanouse agt. Martin, 6 Hom., 240, Court of Appeals, December, 1851, Foor, J., it was decided that an appeal will not lie from a judgment, to review an order made by a judge at chambers, denying a motion of the appellant to remove the cause into the cir cuit court of the United States, where the record shows that no appeal from that order had been taken to the court below.

In James agt. Chalmers, 2 Seld., 211, April, 1852, Welles, J., it was decided that an appeal will not lie from an order denying a motion to stay the trial of a cause, until the decision of another cause. A question of practice.

In Beebe agt. Griffing, 2 Seld., 465, July, 1852, it was decided by the COURT that an appeal will not lie from an order in proceedings for partition, declaring the rights of the parties and appointing commissioners to make partition, before the entry of judgment rak ing partition. Premature.

In Kelsey agt. Western, 2 Comst., 505, October, 1849, JEWETT, J., and in Robertson agt Bullions, I Kern., 246, June, 1854, SELDEN, J., it was decided that it is well settled ·hat only that part of a decree which is appealed from, is brought before the appellate court for review.

In Tompkins agt. Soulice, 7 How., 197, Court of Appeals, September, 1852, RUGGLES, J., it was decided that an appeal will not lie from a judgment of affirmance of the supreme court, affirming an order of a surrogate denying a motion for leave to discontinue proceedings of accounting in the matter of a guardian, and directing that the proof's be closed. Not a final order of the surrogate.

In The matter of Canal and Walker Street, 2 Kern., 413, March, 1855, GARDINER, J., it was decided that an appeal will not lie from an order of the supreme court confirming a report of commissioners of estimate and assessment for opening streets in the city of New York. The statute declares that the decision of the supreme court shall be "jinal and conclusive.

In Illius agt. The New York and New Haven Railroad Co., 3 Kern., 597, March, 1856, COMSTCOK, J., it was decided that an appeal will not lie from an order of the supreme court removing an action commenced therein to the United States court, on the ground that the defendant is a citizen of another state.

In Ford agt. David, 13 How., 195, Special Term, October, 1856, BoSWORTH, J., it was decided that an appeal will not lie from a decision of the general term affirming an order made at special term, overruling a demurrer. It is not a judgment.

In Purchase agt. Jackson, 14 How., 230, General Term, June, 1857, INGRAHAM, J., it was decided that an appeal to this court will not be allowed by the general term of the court below in an action originally commenced in the marine or justices courts in all cases, even though questions of law should be involved. An examination of ordinary questions of law where the decisions throughout of three tribunals are uniform ought to be sufficient, except in a case involving great interests, or settling a principle of law on which nume ens other actions are to be decided.

In Brown agt. Brown, 6 How., 320, Court of Appeals, December, 1851, it was decided by the COURT, that an appeal will not lie from a judgment of the supreme court in an action originally commenced in a justice's court and transfered to the common pleas or county court by interposition of a plea of title. No jurisdiction.

In Gale agt Wells, 7 How., 191: Court of Appeals, June, 1852, RUGGLES, J., and in Porter agt. Jones, 7 How., 192, Court of Appeals September, 1852, JOHNSON, J., it was decided that the act passed April 16, 1852, repealing sub. 4. section 11 of the Code which authorized appeals to be brought from orders of the courts below, “granting new trials." divested this court of all jurisdiction on such appeals; thongh brought previous to and pending when the repealing act was passed. The court allowed such appeals to be dismissed without costs of the appeal or of the motion.

In Howe agt. Joslyn, 17 How., 339, N. Y. C. P., General Term June, 1859, HILTON, J, and in New York Ice Co. agt. Northwestern Insurance Co., 1 Hor, 301, Court of Appeals, 1861, COMSTOCK, J., it was decided, that where the reversal of a judgment by the court below, without awarding a new trial, does not actually and finally determine the rights of the parties, and put an end to the case in that court, no appeal will lie to this court.

In The Mayor of New York agt. Schermerhorn, 1 Comst., 424, September, 1848, PRONSON, J., it was decided that an appeal will not lie to this court from an order or decree of the supreme court made at a special term.

In Jones agt. Derby, 16 N. Y. R., 245, December, 1857, BOWEN, J., it was decided that an appeal will not lie from an order of the general term setting aside a judg

ment and execution for irregularity, but giving no direction in respect to proceedings

in the action.

In Thompson agt. Bullock, 16 How., 213, Court of Appeals, June, 1858, PRATT J, it was decided that an appeal will not lie from an order of the court below striking out the plaintiff's costs from the judgment.

In Ecans agt. Millard, 16 Ñ. Y. R., 619, March, 1858, JOHNSON, J., it was decided that an appeal will not lie from an order of the court below, vacating a judgment in an action to recover the possession of land, and granting a new trial upon pay ment of such judgment, under the provisions of the statute respecting new trials in ejectment.

In Bank of Genesee agt. Spencer, 18 N. Y. R., 151, September, 1858, PRATT, J., it was decided, that an appeal will not lie from an order of the court below, refusing to set aside an execution issued, without leave, after five years.

In Buffalo Savings Bank agt. Newton, 23 N. Y. R., 161, March, 1861, DENIO, J., it was decided, that an appeal will not lie from an order of the court below, setting aside a sale in a foreclosure suit, made on a summary application after judgment. A matter of discretion.

In Briggs agt. Bergen, 23 N. Y. R., 163, March, 1861, SELDEN, J., it was decided that an appeal will not lie from an order of the court below striking out an answer as skam or irrelevant.

In Smith agt. White, 23 N. Y. R., 573, September, 1861, LOTT, J., it was decided that an appeal will not lie from a judgment of the New York common pleas in an action originally commenced in one of the district courts of the city of New York, and regularly continued to judgment in the common pleas, without an order of allow ance of appeal under the statute by the general term of the common pleas.

In Costigan agt. Cuyler, 21 N. Y. R., 134, March, 1860, COMSTOCK J., and in Sanchez agt. The People, 22 N. Y. R., 151, September, 1860, WELLES, J., it was decided, that an appeal will not lie from a decision of a judge who acted as trior upea the challenge of a juror to the favor, and rejected evidence as immaterial offered in suppart of the challenge.

In Van Duzer agt. Howe, 21 N. Y. R., 539, DENIO, J., it was decided, that an appeal will not lie from an order of the court below, allowing an amendment to the complaint by the president of a banking association supplying an averment of the negotiation of the bill to the bank. Matter of discretion.

In Wait agt. Van Allen, 22 N. Y. R., 319, September, 1860, DENIO. J., it was decided, the time fixed by the statute for the allowance of an appeal to this court in an action originating in a justices court, cannot be enlarged.

In Briggs agt. Vandenburgh, 22 N. Y. R., 468, December, 1860, BACON, J., it was decided, that an appeal will not lie from an order of the court below, requiring the receiver of an insolvent coporation to give security for costs, and determining the form and extent of such security. Mitter of discretion.

In Strong agt. Hardenburgh, 25 How., 438, General Term, December, 1862, HOGEBOO, J., it was decided, that no valid appeal could be taken to the court of appeals from a judgment by default at general term.

In McAllister agt. The Albion Plank RoadCo., 6 Seld., 353, September, 1852, WELLES, J., it was decided that an appeal will not lie to this court from the judgment of the supreme court, on appeal from the decision of a county court, in regard to the change of loca tion of a plank rid toll gate. The decision of the supreme court is final and con

clasice.

In Pugdey agt. Kisselburg, 6 Seld., 420, January, 1853, JOHNSON, J., it was decided, that an appeal will not lie to this court from the judgment of the supreme court, in an action brought before a justice of the peace for trespass upon lands, and a plea of title interposed

14. Q. What exceptions, special verdicts and facts found by referees, should contain to authorize a review?

A. In Kegan agt. The Western R. R. Co., 4 Seld., 175, March, 1853, RUGGLES, J., it was decided, that upon a judgment on report of referees, where no exceptions and no distinct questions of law appears to have been presented and passed upon by the referees, the only question for review is, whether the facts found by them are sufficient to sustain the judgment.

In Hunt agt. Maybee, 3 Seld., 272, October, 1851, WATSON, J., and in Rensselaer and Saratoga R. R. Co., 4 Seld., 42, March, 1853, TAGGART. J., it was decided, that where there is a general exception to a refusal to charge, and to the charge, it is not available on review, waless all the ruling was wrong.

In Barto agt. Himrod, 4 Seld., 485, June, 1853, it was decided by the CoURT, that where the case presents no general verdict, but simply a special finding of a fact by the jury, (of the value of the property taken leaving all the other facts upon which the legal rights of the parties depend, as stated in the pleadings, the facts admitted by the pleadings, together

with those found by the jury present the whole case in the proper form for the consideration of the court.

In Bidwell agt. Lament, 17 Hor., 360, General Term, March, 1859, HOGEBOOM, J., it was decided that parties are bound to bring directly and specifically to the notice of the Judge, every point which they wish to raise. Otherwise the court will make every reasonable presumption in support of the decision.

In Zabriskie agt. Smith, 1 Kern., 484, September, 1854, JOHNSON, J,, it was decided, that where the return to this court does not show that the exceptions were stated separately, according to the statute, and not in a case, the court will require that they shall appear upon the return to have been separated from the case under the direction of the court below, or of a judge thereof, or that they have determined that no separation is possible. Where it does appear that the exceptions were taken at the trial and directed to be heard in the first instance at general term the return is in proper form. This proceeding is applicable only to exceptions stated separately and not in a case.

In Barnes agt. Perrine, 2 Kern. 23, December, 1854, W. F. ALLEN, J., it was decided, that where the defendant treats the questions at the trial as purely legal and acquiesces in the disposal of them by the court as such, he cannot on appeal, be heard to object that facts were involved which should have been decided by the jury."

In Bumstead agt. The Dividend Mutual Insurance Co., 2 Kern, 91, December, 1854, W. F. ALLEN, J., it was decided, that an objection that the suit was prematurely brought (on a premium insurance note) not taken upon the trial, cannot be made on appeal. Objec tions of this character are considered waived unless taken upon the trial.

In Young agt. Davis, 30 N. Y. R., 134, January, 1864, DAVIES, J., it was decided that an order of the supreme court setting aside a verdict as being against the weight of evidence, and on payment of costs, is not reviewable on appeal by this court. It is the invariable practice of this court not to review orders made by the supreme court, granting new trials, on the ground that the verdict was either against evidence or against the weight of evidence.

In Belknap agt. Seeley, 14 N. Y. R., 148, June, 1856, COMSTOCK, J., it was decided that where a general exception is taken on the trial by the court, after notice of the judgment, it only raises the question, whether upon the facts as found, the law has been properly decided; and does not present for the consideration of an appellate court, a special objection of variance between the complaint or answer and the proof.

In Davis agt. The Cayuga and Susquehanna R. R. Co., 10 How., 331, General Term, July, 1854, SHANKLAND, J., and in Brown agt. The Cayuga and Susquehanna R. R. Co., 2 Kern. 490, JOHNSON, J., it was decided, that it is a rule always applied by appellate courts to judgments and proceedings of inferior courts that objections which might have been obviated on the trial, if raised then, shall be considered waived by nonobjection.

In Codd agt. Rathbone, 19 N. Y. R., 39, March, 1859, GROVER, J., it was decided, that where a defendant does not interpose by answer, a defense consisting of new matter (the violation of a statute) he cannot avail himself of the defense on appeal, on the ground that the objection by the plaintiff was presumed to have been waived on the trial.

In Hunt agt. Bloomer, 3 Kern., 343, 12 How., 567, March, 1856, and in Johnson agt. Whitlock, 3 Kern. 344, 12 How., 571, March, 1856, COMSTOCK, J., it was decided, that in order to review a judgment after trial by the court or by referees, a case must always be made containing a statement of the facts found by the judge or referees and their conclusions of law separately. It must contain the exceptions taken during the trial and those taken after the trial and judgment, to their final conclusions of law. Exceptions which appear in the case as settled, will on appeal, be presumed to have been duly taken.

In Bridger agt. Weeks, 30 N. Y. R., 328, March, 1864, DENIO, Ch. J., it was decided that this court has no power to review a judgment where the judge after hearing the evidence on both sides and upon deliberation after the trial is concluded, orders judgment for the defendant, on the ground that the plaintiff has misconceived his remedy and is not entitled to the relief claimed, even if his allegations were all true; but there is no finding of facts by the judge. The Code is explecit that in that class of cases the judge must state his conclusions of fact.

In Hoyt agt. Thompson Er'rs, 19 N. Y. R., 212, June, 1859, COMSTOCK, J., it was decided, that a party who appeals from an order granting a new trial and stipulates for final judgment, in case the order be affirmed, concedes to his adversary every conclusion of fact which is supported, however slightly, by evidence If he is unwilling to make such concession and to rest his appeal wholly upon the law of the case, he should be advised, instead of appealing, to acquiesce in the reversal of his judgment, and go down to another trial. This court can correct errors of law only.

In Mills agt. Thursby, 12 How., 417, Court of Appeals, March, 1856, DENIO, J., it was decided, that this court cannot regard any finding of facts except such as shall be stated according to the provisions of the Code. Where referees do not state any facts found by them, except in their opinion, which refers argumentively and in a general way to the conclusion of facts and law at which they arrived; it is not such a paper as is contempla ted by the Code. The court cannot review conciusions of fact, and if no exceptions are

taken to the final decision of the referees, there is no question of law raised for consid

eration.

In Sturgis agt. Merry, 3 Hor., 418, Court of Appeals, March, 1849, it was decided by the COURT, that a case containing the evidence before the referee, cannot be reviewed by this court. A case should be made by the court below and inserted in the record stating facts, and not the mere evidence of facts, so as to present nothing but questions of law. In Thompson agt. Kessel, 30 N. Y. R., 383, March, 1864, JOHNSON, J., it was decided that exceptions to a referee's findings of fact connot be reviewed in this court. Where the testimony before a referee is conflicting upon all the material points involved in the action, and the supreme court at general term has affirmed the judgment, the court of appeals cannot look into the testimony, to determine whether the facts are found according to the weight of evidence.

In Beecher agt. Conradt, 11 How., 183, Court of Appeals, March, 1855, DEAN, J., it was decided, that if there is a bill of exceptions, and an appeal to the general term, it can grant or refuse a new trial; and from such a determination an appeal to this court can be taken. This court will presume a regular appeal to the general term.

In Taylor agt. Pierson, 11 How., 287, Special Term, June, 1855, JAMES, J., it was decided, that there are but two instances where a cause tried before a jury, can be taken to the general term before judgment. In those instances the general term may pronounce judgment in the first instance from which an appeal may be taken to the court of appeals. In Ota agt. Spencer, 15 How., 426, Court of Appeals, March, 1858, COMSTOCK, J., it was decided, that a judgment on report of referee in its nature may be appealable to this court; but if it is entered without containing a case, as prescribed by the Code, the errors at the trial cannot be reviewed.

In Grant agt. Morse, 22 N. Y. R., 324, September, 1860, COMSTOCK, J., it was decided that the party appealing must make his case and have it settled, with such a statement of the facts as will show necessarily that the law is in his favor. If he does not every intendment, not absolutely unreasonable in itself, will be against him. Thus, if this court is not able to see from the record that the referee refused to determine the issues before him, the contrary is to be presumed from the judgment itself.

In Ingersol agt. Bostwick, 22 N. Y. R., 425, December, 1860, Wright, J., it was decided, that there is no case holding that a party can present on appeal to this court points of late that he did not raise upon the trial in the court of original jurisdiction. In Velie agt. The Troy and Boston Railroad Co., 20 N. Y. R., 184, September, 1859, COMSTOCK, J., and in Bissel agt. Hamlin, 20 N. Y. R., 520, December, 1859, COMSTOCK, J., it was decided, that a separate finding of a referee, not included in the case, purporting to be a finding upon the law and the facts, which alone furnishes no material for an intelligent decision of the controversy, cannot be admitted for the form required by law, The case itself should consist of a complete and condensed summary of all facts deemed material, and a statement of the questions intended to be reviewed and of the rulings of the referee on such questions. The report of a referee cannot be accepted in this court as a

substitute for a case.

15. Q. When may or may not orders in special proceedings and summary applications be

A- In Hyatt agt. Seeley, 1 Kern, 52, June, 1854, SELDEN, J., it was decided, that an application by petition to the supreme court under the statute, to compel a specific performance by infant heirs of a contract for the sale of land made by the ancestor, is a special proceeding, and is appealable.

In Genia agt. Tompkins, 1 Code, R. N. S., 415, Court of Appeals, April, 1852, it was decided by the COURT, that an order granting or refusing a provisional remedy is not appealable to this court. It is not contemplated by the Code as a special proceeding. In Giles agt. Halbert, 2 Kern., 33, December, 1854, A. J. PARKER, J.. it was decided, that an order requiring a person, not a party to the judgment to pay such judgment, on the ground that he was the person who brought the action, and was also beneficially interested in the recovery, is appealable. It is a summary application after judgment.

In The People agt. Stilwell, 19 N. Y. R., 532, June, 1859, COMSTOCK, J., it was decided such proceedings that the writ of certiorari is a special proceeding, and a final order-quashing the writ in can be appealed to this court where it affects a substantial right. But the court from which it issued and this court will not review the decision. if the matter rests in the discretion of the court the writ may be quashed at any time by

was

the COURT, that a summary application after judgment, is based upon or concedes the validity of the judgment; and does not apply to applications to set aside the judgment

either for irregularity

granted upon the latter applications. or as a matter of favor; no appeal will lie to this court from orders

SELDEN, J., it was decided, that an order denying an application for admission to prac In The Matter of Henry W. Cooper, 20 How., 7, Court of Appeals, September, 1860,

In McGregor agt. Comstock, 19 N. Y. R., 582, September, 1859, GROVER, J., it was