Legal Opinion

Mills v. Stewart

New York Supreme Court

Decided July 6, 1895PublishedCited by 1 opinion

Appeal from Sullivan county court. Action by Abner Mills against Etta Stewart to foreclose a mortgage. From an order granting a reference,, plaintiff appeals.

1Opinion of the CourtHerrick, J.

The order appointing the referee cannot be reviewed upon this appeal. It is not an intermediate order, nor is this an appeal from a final judgment, within the meaning of section 1316 of the Code of Civil Procedure. Fox v. Matthiessen, 84 Hun, 396, 32 N. Y. Supp. 356. The only way to review such an order is by a separate appeal. The appellant cannot submit to an order, and proceed to a hearing upon the merits, and take his chances of a favorable decision, and then, in the event of its being adverse to him, attack the regularity of the order, or the authority of the court to make it.

The…

2Cases cited2 opinions

  1. Arnold v. . GreenNew York Court of Appeals · 1889
  2. Fox v. MatthiessenNew York Supreme Court · 1895

3Cited by1 opinion

  1. Conner v. WatsonNew York Supreme Court · 1899

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