APPEAL. ordered, but a reference was directed (under § 271, subdiv. 3) to ascertain and report the facts, and on the coming in of the report the court awarded the fund; and this course was by acquiescence of the parties, and did not endanger their rights, in such case the order of the general term affirming the award of the fund, is to be deemed a final judgment, from which an appeal will lie to the Court of Appeals. Such an order is all the determination which the cause can receive, and it is final in its nature. It embraces every matter which would have belonged to a final decree in an interpleader suit in equity, and is, in substance and effect, a judgment, under the Code which defines a judgment, as the final determination of the rights of the parties in action. Ct. of Appeals, 1859, Kirby a. Fitzpatrick, 4 E. P. Smith's (18 N. Y.) R., 484. 2. No formal trial having taken place, and the referee's report having the effect of a special verdict, such an appeal, without any exception, brings up the general question, which party is, on the facts found, entitled to judgment. Ib. 3. The plaintiff had a verdict, and an order for judgment in his favor was thereupon entered in the minutes. An order for a new trial, obtained by the defendant, at special term, on a case containing the evidence and exceptions, was reversed by the general term on appeal, and judgment there ordered for the plaintiff. The plaintiff then obtained an order for an extra allowance, which was affirmed on appeal, at the general term, the order of affirmance directing judgment on the verdict, with costs. The defendant appealed to the Court of Appeals, "from the judgment and from the order of the general term affirming the order for an extra allowance." Held, that the appeal was properly brought; a distinct appeal from the judgment at special term to the general term was not necessary. After the verdict, the only questions which could possibly be litigated, were those arising upon the case. These questions could not be presented to the general term by an appeal from the judgment, or in any other form than by an appeal from the order of the special term, granting or denying the motion for a new trial. The jurisdiction of the general term had therefore been invoked in the only manner possible, and in the precise form which the law requires. Here was an actual determination of all the questions capable of being litigated in the case, after the issue of fact had been passed upon by the jury. It was not a final determination made upon an appeal from the judgment, it is true, but the Code has 'no language naming such a determination as a condition to an appeal. The determination which was made at the general term exists in the judgment itself; for the determination was VOL. VIIL-29 APPEAL. that the judgment was not impeachable upon any of the matters arising upon the case. Ct. of Appeals, 1858, Cook a. The New York Floating Dry Dock Company, 4 E. P. Smith's (18 N. Y.) R., 229. 4. An order of the general term affirming an order of the special term (made after judgment on a verdict for plaintiff), striking out the costs from the judgment, on allegations of irregularity, is not appealable to the Court of Appeals. It is not a final order in a summary proceeding, after judgment. [Sherman a. Phelps, 2 Comst., 186; Dunlap a. Edwards, 3 Ib., 341; Humphrey a. Chamberlain, 1 Kern., 274.] Ct. of Appeals, 1858, Thompson a. Bullock, 16 How. Pr. R., 213. 5. After judgment, the plaintiff issued execution, which was returned unsatisfied. More than five years thereafter he issued execution again, without leave, and on its return instituted supplementary proceedings. The defendant moved to set aside the execution for irregularity, and the motion was denied, and the order denying it affirmed at general term. Held, that the order was not appealable to the Court of Appeals. 1. It did not affect a substantial right. The execution was not void, but only voidable. [Woodcock a. Bennet, 1 Cow., 711.] The object of section 174 of the Code, respecting amendments, is to render the statutory rules of practice flexible, like those established by the courts; and it is within the discretion of the court to uphold the execution. [Morris a. Jones, 2 Barnw. & C., 232.] 2. If the execution was void, there was no pressing necessity for setting it aside, but the party should be left to his action for any proceedings under it. 3. The order was not a final order in a summary application after judgment. The provision of the Code allowing an appeal from such an order, does not refer to an ordinary motion to set aside proceedings for irregularity, or as a matter of favor. [Sherman a. Felt, 3 How. Pr. R., 425; Dunlop a. Edwards, 3 Comst., 341; Humphrey a. Chamberlain, 1 Kern., 274; Jones a. Derby, 2 E. P. Smith's (16 N. Y.) R., 242.] Court of Appeals, 1858, Bank of Genesee a. Spencer, 4 E. P. Smith's 18 (N. Y.) R., 150. 6. The provision of the Revised Statutes, as amended in 1843, (2 Rev. Stats., 4th ed., 771, § 20, Laws of 1843, 8)-authorizing the court or magistrate which shall impose a fine for contempt in certain cases, “in their discretion (in case of inability to perform the requirements imposed), to relieve the person or persons so imprisoned in such manner and upon such terms as they shall deem just and proper"-commits to the tribunals referred to a discretion which is not subject to review in the Court of Appeals. Ct. of Appeals, 1858, The People a. Delvecchio, 4 E. P. Smith's (18 N. Y.) R., 352. APPEAL. 7. Where such appeal is taken, the court will not consider the appellant's objection that there was a defect of evidence as to the inability of the party relieved to pay the fine. Ib. 8. An order made on a motion to open a judicial sale on grounds not affecting the regularity of the proceedings, is in the discretion of the court, and is not appealable. Kingsland a. Bartlett, Ante, 42. 9. Though an order dismissing a motion on the ground of laches is not appealable, yet where the court entertain a motion and receive affidavits on the merits from both sides, an order denying the motion, though upon the ground of laches, is appealable. Titus a. Relyea, Ante, 177. 10. An appeal from a judgment on a verdict without any motion for a new trial first being made, was heard and determined on the ground that the judge who tried the cause could not then hear the motion. N. Y. Common Pleas, 1855, Mead a. Keyes, 4 E. D. Smith's C. P. R., 510. 11. It seems, that on a trial by the court without a jury, the court should by its decision dispose of all questions of right and liability; and that an order entered on the decision of the action, which disposes of only some of the questions raised by the issues, and orders a reference, expressly reserving the determination of other questions until the coming in of the report of the referee, is not an order, on an appeal from which any decision actually made on the trial can be reviewed, except the competency of the court to direct such an inquiry by the referee as the order provides for. N. Y. Superior Ct., Gen. T., 1857, Griffin a. Cranston, 7 Bosw., 287. 12. Appeals from orders denying motions to vacate orders of arrest after the party is out on bail, are not to be encouraged. Moers a. Martense, Ante, 257. 13. In case of such an appeal, the order should be affirmed, unless the appellant can affirmatively show that facts necessary to sustain the order were not established. Ib. 14. Upon the decision of a case tried by the court, an accounting was ordered; before the accounting was taken, the plaintiff appealed, and without any objection being taken to an appeal at that stage of the cause, the decision was reversed and a new trial ordered. On the new trial a decision was made, and an accounting ordered, and before that accounting was taken the defendant appealed. This appeal was dismissed on motion of the plaintiff, on the ground that the judgment at special term was not appealable until the accounting had been taken. The defendant thereupon moved, on the same ground, to vacate the order of the general term by which the first decision was reversed and the new trial ordered. APPEAL. Held, that although the appeal was irregular, the order made on it was not void. 1. It was competent for the parties to waive the objection that no accounting had been taken, and to insist on a decision at that stage of the cause. 2. That the course of the defendant in proceeding to the new trial was a waiver of any objection. 3. The irregularity did not amount to any want of jurisdiction of the proceedings. D'Ivernois a. Leavitt, Ante, 59. 15. Although a stranger may make an application to the court respecting an action in the capacity of amicus curiæ, he has no standing in court respecting the action, and cannot maintain an appeal from any decision made on the application. E. B. a. E. C. B., Ante, 44. 16. A defendant who does not appear on the trial in the court below cannot appeal from the judgment rendered against him. The objection that the complaint does not state facts sufficient to constitute a cause of action, if not presented by demurrer, must be raised at the special term or circuit before it can be available on appeal. Pope a. Dinsmore, Ante, 429, and note. 17. The defendant's remedy is to move upon excuse, to have the default opened. Ib. 18. The judgment debtors appeared on the return of an order for the examination of a third party, for the purpose merely of objecting to the granting of any order affecting their rights, and the judge made an order directing the third party to pay over to the plaintiff moneys belonging to one of the judgment debtors. Held, that the judgment debtors could not maintain an appeal from such order. Foster a. Prince, Ante, 407. 19. The judgment in an action respecting the right to a lease, declared that the defendant held it for the use of the plaintiff, and directed that he assign it to the plaintiff, and that the plaintiff concurrently give to the defendant a bond of indemnity against the covenants in the lease; and it further directed the plaintiff to pay into court the amount of certain rent and taxes which had been paid by the defendant, and with leave to the parties to litigate on motion the right to such moneys. The defendant appealed from the judgment, excepting such parts of it which required the plaintiff to give indemnity and to pay moneys into court, and meanwhile obtained a reference, on which the moneys were apportioned, and he also brought suit on the bond of indemnity. Held, that by proceeding to enforce the parts of the judgment in his favor, he had waived his right of appeal. All the provisions of the judgment were connected and dependent. Those parts included in the appeal could not be reversed without reversal of the whole. And it APPEAL. results that the defendant could not both proceed to enforce such portions as were in his favor, and appeal from those which were against him. An election to take one of these courses was a renunciation of the other. Such an election was made when the defendant took the proceedings in court for obtaining the money which the plaintiff had deposited, and when he also proceeded on the indemnity bond. Ct. of Appeals, 1859, Bennett a. Van Syckel, 4 E. P. Smith's (18 N. Y.) R., 481. 20. A corporation, owning land on which a highway is laid out, is a "person," within the meaning of the Revised Statutes giving the right to appeal. The design of the statute was to give the right to all parties or persons, whether natural or artificial, who should conceive themselves aggrieved. [15 Johns., 381.] Supreme Ct., Gen. T., 1858, The People ex rel. Dayton a. May, 27 Barb., 238. 21. An appeal to the general term is not to be dismissed because of the want of a case or exceptions. The right to bring or to maintain an appeal, does not depend upon the parties making a case or exceptions. The only consequence of neglecting to make a case or exceptions is, that the appellant thus situated, loses the right of reviewing any questions which were the subject of objection and exception, leaving his case to stand upon the record proper alone. [Brown a. Heacock, 9 How. Pr. R., 345; 3 Abbotts' Pr. K., 115; 4 lb., 309.] He is confined to errors appearing upon the face of the record strictly, without reference to matters arising upon, or after the trial, and which properly belong to a case or exceptions. Supreme Ct., Gen. T., 1858, Conolly a. Conolly, 16 How. Pr. R., 224. 22. It seems, that to entitle a party appellant to review any questions, either of fact or of law, arising upon the trial, or upon the decision, where the action is tried by the court without a jury, or by a referee, a case, or exceptions, which is the same thing under the Code, regularly settled and filed, and made a part of the papers presented to the court, is indispensable. Ib. 23. On defendant's appeal from judgment at special term, the general term ordered a new trial, unless the plaintiffs would deduct a certain sum from the judgment; in case they consented to the deduction, judgment of affirmance was given as to the residue of the judgment. The plaintiffs did not consent to the deduction, but appealed to the Court of Appeals. In the notice of appeal they stipulate that, if the order shall be affirmed, the deduction shall be made from the judgment, and the residue thereof affirmed. Held, that the motion of the appellants to dismiss their own appeal should be granted, on payment of costs of appeal and of motion. If |