New-York tribune., 1867-03-30
CorRr OF frrEAIs-MAEcn %.


.Tm EXrREss NEWSPAPER cAsE-nIF rAIER 30 BE
sCiI,-NO APPEAL IRON An INTuIoCt IOIY
ORDER ALLOwED--AN iMroKr4Nr IIACHCE III
ClSION
Stephen J. Csh sst J,1e Brood, end Era,trs Brooks.
THIS was motion 10 dismiss the appeal from an
Pleas entered sept &C. lsCc. affirming the judgment de-
1SIiHg the rights O the parties ln Neri i"@ lgeSs and
T2e foowmg is The opinion Of tlc Court delivered by
--Hnt j.: This action was brought for the purpose c
closing the affairs of partnership alleged 10 cNiSt be
lwoen the eplantnandt The dcfedaIt, ~ hc pupcatouo
0e newspaper called The Var Yoi ErDtCSS During the
Joarl6s an application made aud granted lortlc SET
ttment Of certain issues be tIed 10y jury Ancr the
tidal Of such ISSUES by the jury the plaintiff brought
1ho cause generally lor hearing ana nlal at Special
iem he'd IN February ls6j, and moved iOr Judgment OH
the f1d'rgs Of me l1ry me motion Of The plaintiff Wa.
4fanted ana tne judgment oGer declared the rights Of
the ymiies TO the subject matter Of the partnership 1t
Ser me ntecuon 9i referee named aud ordered the
tefefee 10 take and state account of the partnership
dealings and transactions II also directed tie payment
fnc file his report, and the question Of the plaintiffs
ltcice. This order aSo recitf order of the Special
Tom made Feb T. lstj, DENYING motion for trial
containing Tie licadr, the issues, the testimony
f."insS Of the jury, and exceptions. The order thus
tte General Term nom This latter order and from the
ladgnent order 9i EN- ~ lse5 were apparently heard IN
sceuOer. 1860 Prom this order an appeal was taken 10
"a Cont 10y the defendants and te plaintiff moves
% dismiss the sane on the ground mat no appeal VIII
Tic tcnent order Of February H. 1863 is not Al, an
larle order II l. not judgment OF which record
Was been made and filed but order ior judgment su-
ply Considering H. however as judgment 10 is not "a
I'D Judgment mteriOcuoly merely, and 40 appeal from
t'rdeUeut Is such lie. To This Court except when the
been made and Judgment entered thercupou addi-
t~na PntSohS may ISe' np" winch me Judgment Of
Sic SPECIAL ana TIE General Itlm may he needed and
fiOm which appeal NAY be taken tO hs Court. When
4 shall thus be brought up the Judgment will be final
eEd one appeal 10 th> 'oWi VIII embrace all The qucS
tons thus presented. oT that may he embraced in auy
previous order affecting the merits a The 10 is not
he practice 10 allow ease 20 come o This Court upon
hdFmcniay trial 10y ustaiments and Iu different forms.
sre 10 be invesicifc Tu tine c1Icl,"u rf tIe ,ef,r
cuee and the entry Of final Judgment upon H. no ap-
a. " H-R., 't HUll!,tcr Bank agt. Vail, % " Y. r.
$50 10 Nas stated upon The argument that a contrary
dec slon had been made n stevens agt The Buffalo IL
n Y. j.. r. Coz as reported. am satisfied tins i'm AN
tBor. fine affidvts n that showed that an appeal
ihe ana the motion 10 DISMISS was denied probably
0ron Tie ground mat the tIst appeal was practically
Justified or il might have been denied upon ground
fht the judgment became final after the reference had
eort Of the been had and the referee confirmed by the
l'Ourt a Com. $50 fhe opposing afdayits not on
te with the Clerk Q the Cont. Upon consultation with
uy brethren they concur i the opinion that the rule is as
hayeataed u above auG that Il any has been de-
tded differently II las been done iuadN Neiteny with
Snt due consideration,
It's supposed, however, that different rule prevails
where motion for new tual denied, ard thai the
ibe part O the defendants for trdl upon The issues
settled which denial was affirmed in Inc order Of tbe
General Term Of SEPT. ~, lS66
The section Of tho Code cited hy the appellants plainly
new IN the trial occurring IN the ordinary
Of practice, and where lud gment mas been eI
Sfcd But there no tlal ~ this actOn the Occa
son s1ggested That trial took place aiterward the
18th day of February, 1865 aud the whole was never
Before the Court ill that day. There had been previous
tf OF certain questions in the case the determination
OF which IL supposed would aid the Court in ascer
SaDDg the merits ~ the when the trial itself should
sOne It trial Of the precise written questions
e"lseitted fo the Jury aud of nothing else. BY the
stHiFlished practice these questions might embrace the
aDers of the generally, or they night he limited 70
ANY portion N IT, Such a.pIOceedDg not tlial of the
AicD. but examination Of the particular questions
abp1lted only Al subsequent time the action itself
iust 10 brought for trial, when these preliminary
Y .oeeediDgs are submitted 70 the Court as a part
~ the Proceedings IN the An award OF q feiened
~ ~ under the former practice ChncTy the framing
errees as Row practiced is proceeding simply TO in.
0ra The conscience and Judgment Of the Court before
when tbe trial - had Jhe Court 70 which the result Is
pIesened on the Trial Of the acea Is authorized to he
how upon u just that degee Of attention 10 which il is
tutitled IL may rely upon satisfactory and concu
SVe IL may accept IN part rejecting other points II
ynay discard II entirely uansDg agt. RUSSELL CONS
10 Candee agt Lord CONS 269) An award Of issues
is matter Of practice. and may De- granted in
The ditcrtiiOn Of the Court. Tie granting az trial
stteT verdict upon fePned issue Ia the discre
Sion OF The Chancellor, and not the subject Of an ap-
peal. IL tie result Nas right, he accepted it aLOngh
fu0rB might nave iDieiyCDtd in rCaCllEslt Each il DIE