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Lahens v. Fielden.

tiff had a right to appeal from that order to this court, and on such appeal to have the order of June 27, and perhaps that of May 25, reviewed here; though as to the last there is great doubt, as the affidavits referred to in the order of May 10, 1858, on what that of May 25, 1859, was based, are not part of the record, and consequently, are not before the court. The order of June 27 was a final judgment, and it was rendered upon the actual determination of the court and not upon default, although it was granted upon the failure of the plaintiff to comply with the terms of the order of May 25. It justified the filing of the record of it, as appears to have been done on September 17, and entitled the defendants to an execution for the four thousand one hundred and thirty-one dollars and eleven cents, which it adjudges to them for the costs of the action. The judgment thus rendered was with some modification affirmed by the general term, as was conceded by respondent's counsel, on the argument of the motion here, though the record does not show it with certainty, and as such affirmance was after argument in behalf of appellant and respondents, it was an actual determination of the general term. The case is therefore directly within subdivision 1 of section 11 of the Code of Procedure, and this court is authorized to review the judgment, and any intermediate order involving the merits and necessarily affecting that judgment.

It was obvious, as is claimed by the respondent's counsel, that the judgment and the orders sought to be reviewed prosented mere questions of practice, or were such as rested entirely in discretion, we should dismiss the appeal on that ground, and it may be found on full argument that such is the character of the questions presented, but the case is complicated, and it does not appear so clearly to the court now that such is the case as to justify, for that reason, a dismissal of the appeal on this motion.

The case differs materially from any of those referred to by the respondent's counsel. In Briggs v. Bergen, 23 V. Y. 162, the appeal was not from the judgment, but from the order striking out the answer.

This case would have been the same if the appeal had been from the order of May 25, and not from the final judgment. In that case, the judgment appears to have been entered by

Lahens v. Fielden.

default, after the answer was stricken out; in this it was entered after argument by counsel for all the parties.

The appeal in Sherman v. Felt, 2 N. Y. 186, was from an order granting a motion to set aside a decree obtained by default; and in Fort v. Bard, 1 Id. 43, it was from an order denying a like motion; both calling for the exercise of discretion in mere matters of practice, which this court does not review.

In the case of Dunham v. Nicholson, 4 How. Pr. 140, the order appealed from, although it directed that the plaintiff have judgment for want of an answer, was interlocutory and not final, as it provided that the defendant should “submit to an examination on oath concerning his property, and the judgment to be given.”

The appeal in James v. Chalmers, 6 N. Y. 209, was from a final judgment, and on that appeal it was sought to reverse an order denying a motion by the appellant before trial in the court below, to stay the proceedings in that suit until after the trial of another action relating to the same matter. This court held that the order did not involve the merits, or necessarily affect the judgment, and was not reviewable here. No other cases were referred to as sustaining the present motion on the conceded facts, and these fall short of it.

There being, as I believe, a substantial right of appeal, though defectively presented by the record, the appellant should be allowed to withdraw the return, with a view to the correction of the record in the court below, and the amendment of his notice of appeal, if he shall be so advised; and he should be required to pay ten dollars costs of this motion, and to cause the amended return to be filed with the clerk of this court, and these printed copies to be served on the respondent's attorney by December 18 next, unless the time shall be extended by one of the judges of this court, and in that case within the extended time, and in default of so doing, the appeal to stand dismissed, with costs to the respondents.

II. January, 1863.-The appellant then amended his case by

Lahens 0. Fielden.

inserting therein all the intermediate orders, with the affidavits on which they were granted. The respondent having been served with copies of the case, thus amended, moved to dismiss the appeal upon the case itself.

Jeremiah Larocque, for the motion.

William Curtis Noyes, opposed.

BY THE COURT.-H. R. SELDEN, J.-A motion was made at the last September term to dismiss the apreal, för want of jurisdiction in this court to hear it, which was granted conditionally, on account of formal defects; but the opinion was then expressed that the judgment attempted to be appealed from was a final judgment, which might be subject to review in this court.

The motion to dismiss the appeal is now reviewed, the appellant having made an effort to remove the formal objections. I have not examined the return particularly to ascertain how far that effort has been successful, for the reason that the respondent's counsel expressed a desire, whether the technical objections were removed or not, that they should be disregarded, and the motion decided upon its merits, without reference to them.

So far as the order of May 25, 1858, directs the names of the non-resident partners of Louis Emile Lahens to be stricken out of the bill of complaint filed by him, I am inclined to think it was a mere question of practice, depending upon the exercise of discretion, which is not subject to review here; and if there were nothing else in the order, I should think the present appeal might properly be dismissed; but the further direction, requiring the remaining plaintiff to make them defendants, and prescribing what allegations he should insert in his amended complaint, presents questions of a different character. It would not be proper on this motion to decide whether that direction was erroneous or otherwise, but only whether it is such a direction as this court can examine, and, if satisfied, after hearing counsel in regard to it, that it is erroneous, can correct. I am of opinion that the present appellant had a right to insist upon bringing his cause to trial, after the names

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Lahens v. Fielden.

of his copartners had been stricken out, without making them defendants, and if he had that right, it was error, and not a mere exercise of discretion, to dismiss the complaint on account of his refusal to make them defendants. It is, to be sure, stated in the order, that the complaint is dismissed “for want of prosecution," and if nothing more appeared, it would present a mere ordinary question of practice, which this court would not review; but the papers taken together show that the want of prosecution consisted simply in the appellant's refusal to proceed by making his original co-plaintiff's defendants, as directed by the order of May 25. The change in the language of the order made at the general term appears to have been designed to present this view more clearly than it was presented by the original order, so as to give the appellant the benefit of that position, if he saw fit to appeal. I am inclined to think that the provisions in the order requiring the appellant's coplaintiffs to be made defendants, instead of leaving them out of the case entirely, were intended for his benefit, to enable him to secure a prompt appearance and answer from them, which he probably could not have compelled, and his refusal to comply with it would seem to have been unwise; but nevertheless he may have good reasons for insisting that the bringing in

parties as defendants should have been left to his discretion, and that all which it was proper for the court to do in that respect, after striking out their names as plaintiffs, was to grant him leave to make them defendants, if he should be so advised. I have looked carefully through the pleadings, and think the appellant might with some propriety insist that after the striking out the naines of his co-plaintiffs, all necessary parties were still before the court, on the ground that his partbers were never bound by the accommodation indorsements made by him, and that the defendants having received the notes from the maker and not from the indorsers, were chargeable with notice of that fact. If these facts, and the allegations of the complaint in regard to the purpose for which the notes were delivered to the defendants, could be substantiated on a trial, it does not seem to me clear that he would not, with the present parties before the court, be entitled to a decree that the notes be canceled. We need not consider whether these views ,

those

Lake 0. Artisans' Bank.

can be maintained or not; if they are not clearly unsound, the appellant has a right to be heard in regard to them, or in regard to any other grounds upon which he thinks his action could be maintained with the present parties; and it would not be proper to dismiss his appeal without such Learing. These views prevented the absolute dismissal of the appeal on the former motion, and they lead to a denial of the present motion. The appellant's counsel waived nothing by stating that sooner than comply with the order, he would allow the complaint to le dismissed, and present the question on appeal. This is far from showing a corsent to the order of dismissal, although it shows that he regarded such dismissal as the necessary consequence of his refusal to comply with the previous order, which he thought wrong.

The order or judgment of dismissal shows upon its face that it was opposed instead of being consented to by the appellant's counsel; at least such is the inference from its recitals; and besides, it was appealed from to the general term and revived there, as an order not made by consent.

The motion should be denied.

LAKE v. THE ARTISANS' BANK.

March, 1867.

Reversing in part, 17 Abb. Pr. 232.

When, upon trial of a cause at circuit and before a jury, the court, on

motion of defendant when the plaintiff rests, dismisses the complaint, and the plaintiff except:, it is competent for the judge to order the ex

ception to be heard, in the first instance, at general term. Where, on an appeal founded on such an exception, it clearly appeared

that the court had decided the cause upon a wrong issue, and had omitted to notice a fact material to the plaintiff's case,-11dd, that the exception ought to be regarded as sufficient to warrant the appellate

court in reviewing the decision. An indorser who pays the amount of a note to a holder, under a mistaken

belief, founded on statements of the holder, that he, the indorser, has been duly charged, or that a prior inderser has been, may, on discoverin that he was not so charged, maintain an action to recover back the amount paid.

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