Vail v. Remsen
New York Court of Chancery
This was an application to set aside the proceedings of the complainant for irregularity. A decree had been made by the vice chancellor of the fourth circuit, referring it to a master to take an account of the complainant’s damages, under a covenant of warranty of the defendant’s testator, and directing the defendant to pay the amount reported due, with costs, upon the coming in and confirmation of the master’s report.
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This was an application to set aside the proceedings of the complainant for irregularity. A decree had been made by the vice chancellor of the fourth circuit, referring it to a master to take an account of the complainant’s damages, under a covenant of warranty of the defendant’s testator, and directing the defendant to pay the amount reported due, with costs, upon the coming in and confirmation of the master’s report. The defendant excepted to the master’s report, upon the ground that the master had adopted an erroneous principle by which the amount of damages was enhanced. The vice…
1Opinion of the Court
The Chancellor.
The complainant’s solicitor is clearly wrong in supposing that he .has a right to proceed and carry into effect a decretal order, which he has himself appealed from, at the same time that he is proceeding on the appeal to reverse that order and to confirm the original report of the master. The two proceedings are wholly inconsistent with each other, and either the one or the other must be abandoned. If the appellant succeeds in the appeal after he has collected the damages and costs which he would be entitled to under the order appealed from, the defendant will have been…
2Cited by10 opinions
- Cogswell v. ColleyWisconsin Supreme Court · 1867
- Platz v. City of CohoesNew York Supreme Court · 1880
- Turner v. PierceWisconsin Supreme Court · 1872
- Smith v. . RathbunNew York Court of Appeals · 1878
- Benkard v. BabcockThe Superior Court of New York City · 1864
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