Porter v. Parmly
The Superior Court of New York City
Motion to dismiss an appeal from an order. An order of reference was made on the 22nd of April, 1873, and on the following day a copy of it was served on the appellant. On the 14th of November, 1874, the notice of appeal from this order was served. In the meantime, the hearing before the referee had been proceeded with, a report made by the referee, and confirmed after overruling exceptions to it taken by the present appellant.
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Motion to dismiss an appeal from an order. An order of reference was made on the 22nd of April, 1873, and on the following day a copy of it was served on the appellant. On the 14th of November, 1874, the notice of appeal from this order was served. In the meantime, the hearing before the referee had been proceeded with, a report made by the referee, and confirmed after overruling exceptions to it taken by the present appellant. The plaintiff move's to dismiss the appeal from the order of reference.
1Opinion of the Court
By the Court.—Curtis, J.
This appeal should have been taken within thirty days after written notice of the order, in conformity with § 332 of the Code, so far as it is an appeal from the order of reference of April 22,1873. Whatever right the General Term may have to review this order of April 22nd, 1873, as an intermediate order, that right, can not be exercised in an appeal that is without force or validity.
It appears to be clearly settled, that a party can not go on under any order, and take an advantage from it, without waiving his right to appeal. The administration of justice could not…
2Cases cited2 opinions
- Radway v. GrahamNew York Court of Common Pleas · 1857
- Ubsdell v. RootNew York Court of Common Pleas · 1856