Smith v. Dodd

Decided September 15, 1854

New York Court of Common Pleas · decided 1854-09-15

This cause came up to the general term in the form of an appeal, by the plaintiff, from an order directing a special reference to take and state an account. The appeal was submitted upon the pleadings and a draft order, with points of counsel; but no order had been entered nor papers filed with the clerk of the court.

Decided 1854-09-15

By the Court. Ingraham, First J.

¶1The papers on which the motion was made are not furnished to the court, nor have I been able to find any on file, or any order entered with the clerk. Until this is done there can be nothing to appeal from, and the court cannot decide upon the merits without the papers.

¶2If none were used, or the motion was made on mere verbal statements, it must have been by consent, and no appeal in such case could be taken.

¶3Case dismissed. (a)

¶4The order was afterwards regularly entered, and was reviewed upon the merits at the succeeding October term. See post.—Rep.