New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1870-07-01

The jurisdiction conferred by the amendment s for the
benefit and relief OF PARTIES and the Court has right
TO decline to exercise It, Regarding the merits OF the
case the complaint treating and describing the order
In the case OF Roberts ag Whitney and Others dated
Dec 49, 1862 final order, seeks, notwithstanding that
the time therein prescribed for Roberts who represented
the creditors OF Trmbe TO redeem had eapseda iudg
ment authorizing the plaintiff 10 make the redemption
and bases its claim upon the allegation that Roberts
by collufion with Duff had allowed the time limited
out the redemption being effected. This charge wholly
W% en is urged ne noW
that that averInent was quite mmaterial, and that
titled to the relief demanded. The Judge below seems
10 have acted on that view-because, 10 is said,
and that is conceded and is undoubtedly true,
right which the defendants In the Roberts
suit had and that until order had been made In that
recitng the mission OF the plaintiff to comply within
the specified time with the terms upon which Roberts
was allowed redeem and barring and foreclosing
the mortgage the decree anal pleaded
bar To this action Is not disputed that under the
upon the omission 10 redeem within the prescribed time
would be mere matter OF form. The effect OF such
decreal order that made in the Roberts suit has been
settled by the Court OF Appeals The principle laid
down there is that when there is nothing further TO he
adDdcated or considered by the Court the judgment ia
final although 10 some ministerial act which may result
in having Judgment for sum of money docketed
against person yet remains TO he done. In this
there remained nothing to be done calling for
any judicial consideration. Everything had been
Ii follows from these views that the Judgment Of the
Court below was erroneous and must he reversed Con
corning the application OF the defendant to rehear the
appeal taken from Judge Baards order of Aug 1863.
authorizing Mr. Dun receiver TO make lease upon
certain terms ana to reconsider the point that that order
not appeaable the Court of the opinion that the
General Term in January 1862 held that order 10 be APP
pealable and modified IT, The appeal of Duff TO the
Court of Appeals dismissed, and the question now
raised whether the order renewable by the Cen
era Term The point is could the action Of the Judge
az Special Term he reviewed on appeal. We think not.
II neither involves the merits nor affects substantial
right The Judge sits az Special Term as Chancellor In
such matters and his action cannot be reviewed. The
order of the General Term modifying that order must
therefore be vacated and the appeal from the order be
dismissed not appealablc The motion for new trial
is granted. Judge Barnard cOncurred In this opinion.
Presiding Judge Ingaham dissents the ground that
the order nshe case of Roberts ag Whitney was bar
90 the present action
b. F. Tnayer, for plaintiff; John Graham and A. J.
Mart Allen b Hare Neo Tridi-The appeal in the
of Martin Allen, tried aud convicted of grand larceny
at the Court OF General Sessions Is sustained and new
trial ordered. The complainant j. f. Smith, whose tes
tmony Allen convicted, is native Of Connecticut,
and while temporarily stopping In this city, was in
duoed by two girls 10 enter house In Howardst where
he robbed by means Of the panel game OF $780, The
ground which the appeal taken that one Of
10 the character of the prisoner There an opinion on
the appeal by each of the Judges Judge Barnard OF
the opinion that the conviction will not hold good as in
the Impeachment OF the jury one or them expressed
prejudice against the prisoner TO the effect that hs
(he prisOner) general character bad, and admit
ted that he 1.-THE juror was biased Judge Cardozo in
fuller and more elaborate opinion concurs incidentally
remarking that the reference, in Judge Ingrahams
opinion to the opinion Of Judge Strong in the Lehman
case not in point, Judge StrOngs was not sus-
tanned by the Court Of Appeals.
DecisiOns.-By Judges Barnard and Cardozo.-Charles
L. Burre Excr, agt. Julia NJ. B0ar1man and Others
Judgment affirmed with costs. BY all the Judges.-The
Waverey National Bank agt Mary A. Iialney and Others
judgement reversed, and trlal ordered costs 10
abide event opinion by Judge Ingraham. Edward NJ.
Cannon agt Maria Bird etal. &c-Judgment affirmed
with costs opinion by Judge Ingraham. Elizabeth M.
Conkln agt j. Rowena Brown.-Judgnent ordered for
plaintiff on the submitted opinion by Cardozo j.
T.. X. Cassidy agt. Ann d. lie Fevre ct al.-Judgment
affirmed with costs opinion by Ingraham, p. j.