Gould and others agt. Chapin and others. upon an irregularity. It would allow the statute to become an instrument of oppression if the plaintiffs in this case are to avoid the payment of the costs of the motion by curing the defect complained of by means of an amended complaint, served after the defendant had prepared for and given notice of the motion. The motion must be granted with ten dollars costs, unless the plaintiff within twenty days pays the defendant's attorney ten dollars costs, and stipulates to allow the defendant twenty days thereafter to answer the amended complaint. 5 How. 358-Contra, 8 How. 463. SUPREME COURT GOULD AND OTHERS agt. CHAPIN AND OTHERS. On appeal from a judgment upon a report of a referee, the date of issue on the general term calendar, must be the day of filing the report. Monroe General Term, June 1850. Before WELLES, P. J., and SELDEN and JOHNSON, Justices. This is an appeal from a judgment on the report of a referee, the decision of the referee to stand as the judgment of the court. The appellant put the cause upon the calendar, and in the note of issue, stated the time the last pleading was served, according to which the clerk gave it precedence on the calendar. S. B. JEWETT, for the respondent, moved to correct the calendar by putting the cause down so as to take date only from the filing the report and entering the judgment. M. T. REYNOLDS, for the Appellant. By the Court, WELLES, Justice.-Neither the Code or the present rules have provided in what order causes shall be placed on the general term calendar. The former practice must therefore govern (§ 469 of the Code and rule 92 of this court.) Law rule 51 of the rules of this court, adopted in July 1847, provided that the note of issue to be filed with the clerk should contain, among other things," the date when the question arose," and rule 53 of Enos and others agt. Thomas and Hunter. the same rules required the clerk to make up the calendar according to such dates. Such had long been the practice before (Gr. Pr., 2d ed. 671-2), and there is nothing inconsistent with it in the Code or the present rules of this court. In case of a motion to set aside an inquisition or report, the question was deemed to have arisen on the day when the writ of inquiry with the return, or when the inquisition or report was filed (id 672). In analogy to that practice we think the question in this case must be deemed to have arisen on the day when the report of the referee was filed. Let the calendar be corrected accordingly. 5 How. 359-FOLLOWED, 40 How. 46. COURT OF APPEALS. ENOS AND OTHERS, Respondents agt. THOMAS and HUNTER, Appellants. An order of the Supreme Court denying a motion for stay of proceedings on the judgment, and for liberty to move to set aside a report of referee without an appeal, or for an order extending the time to appeal, is not an appealable order. March Term, 1851. Motion to dismiss an appeal from an order made at a general term of the Supreme Court held at Albany on the 20th September 1850, denying a motion made on the part of the defendants for a stay of proceedings on the judgment, and for liberty to move to set aside the report of the referee without an appeal, or for an order extending the time to appeal, E. F. BULLARD, for Respondents. N. HILL JR., for Appellants. By the Court, Ruggles, Ch. J.-This was not such an order as can be brought into this court to be reviewed on appeal. It involved a question of practice merely, addressed to the discretion of the court below (2 Comstock, 186; 3 id. 342). McMahon and Wife agt. Harrison. COURT OF APPEALS. MCMAHON AND WIFE, Respondents agt. HARRISON, Appellant. An appeal from a judgment of the Supreme Court reversing an order of a surrogate, with costs, is premature, if brought before the amount of costs are ascertained and roll filed; whether a stay of proceedings is sought or not. March Term, 1851. Motion to dismiss an appeal from a judgment of the Supreme Court, by which an order of the surrogate of the city and county of New York, allowing letters of administration to issue to Harrison, was reversed, with costs both in the Supreme Court and in the Surrogate's Court. The order for judgment of reversal bears date on the 8th of March 1851. Harrison appealed on the 13th of the same month. The costs had not then been taxed or ascertained and the judgment roll had not been filed. A. LOCKWOOD, for Respondents. A. MATHEWS, for Appellant. By the Court, RUGGLES, Ch. J.-The appeal having been made before the amount of the costs were ascertained, and the judgment roll filed, it was premature. Until the costs are taxed or settled it can not be known, in cases in which the proceedings are to be stayed, in what sum the sureties are to justify; and it is better that the practice should be the same where the proceedings are not stayed as where they are. The party desiring to appeal may by motion and order in the court in which the judgment is rendered, compel the other to perfect his judgment, if he delays to do so. The appeal must therefore be dismissed, but without costs. 5 How. 361-CRITICISED, 18 How. 324. FOLLOWED, 7 How. 108, 112. Contra, 5 How. 310; 14 Id. 430, 434, 435; 3 Duer 669. NEW-YORK PRACTICE REPORTS. Enos and others agt. Thomas and Hunter. 361 SUPREME COURT. ENOS AND OTHERS agt. THOMAS AND HUNTER. After judgment the only mode of reviewing the decision of a referee is by an The court has not the power to enlarge the time to appeal, where notice as re- Albany General Term, Dec. 1850. Before Justices WATSON, PARKER and WRIGHT. This action was referred to a referee, who reported in favor of the plaintiffs, January 24, 1850. On the 22d February 1850, a copy of said report was duly served on the defendants' attorneys, who reside at Buffalo. On the 8th day of March 1850, Justice SILL, at Buffalo, granted a stay of proceedings for twenty days before judgment, in order to give the defendants liberty to move to set aside the report. Upon notice to the plaintiff's attorney, on the 28th day of March, the defendants moved before Justice SILL for a further stay of proceedings for the same purpose, but which motion was opposed and denied on the ground that Justice SILL had no authority to inake an order out of the fourth district and not adjoining Saratoga county. The defendants then applied to the plaintiffs, attorney to stay proceedings by stipulation, but such stay was refused by letter dated April 1, 1850, on the ground that the questions being merely exceptions and points of law, it was not a proper case to review before judgment, but that the defendants should take their remedy by appeal after judgment. The defendants acquiesced in this view of the case by not applying for a further stay to one of the justices of the fourth district. After a motion for extra costs had been made and granted, on the 27th day of April 1850, a judgment was entered upon the report of the referee in favor of the plaintiffs and roll filed in Saratoga county. Notice of said Enos and others agt. Thomas and Hunter. judgment was personally served on the defendants' attorneys May 1, 1850, and an execution was issued to Erie county, where the defendants resided, May 6, 1850. On the 13th day of June 1850, the defendants filed notice of appeal and undertaking and served notice also on the plaintiffs' attorney, but no notice was given or other act done until more than thirty days after notice of the judgment, except that the papers were drafted in the attorney's office before the thirty days had expired, and the defendants' attorney swears he forgot to serve them within the thirty days. Thereupon the plaintiffs noticed a motion for the general term to be held in Clinton county, July 1, 1850, to dismiss said appeal, which was granted by default. The excuse given why said defendants did not oppose that motion was that Mr. Tifft, one of the plaintiffs, who resided at Buffalo, on the application of the defendants' attorneys consented verbally to have said motion stand over until the Albany general term, to be held September 1850. The defendants' attorneys also applied by letter to the plaintiffs' attorney to postpone the motion, but he immediately answered and refused to ratify the arrangement of Mr. Tifft. Afterwards, the defendants' attorneys say that they had not time to prepare papers and go personally to Clinton county in time to oppose that motion. The defendants noticed the cause for argument and put it on the calendar at the Albany general term, September 1850, and also moved for liberty to review said judgment without an appeal and for a stay or for an order extending the time to appeal and to open the default dismissing the same. The motion was argued at the September term. J. K. PORTER, for Defendants. E. F. BULLARD, for Plaintiffs. By the Court, WATSON, Justice.-If this court had power to relieve the defendants as a matter of discretion, it would be a great indulgence of that discretion to allow them to appeal after so long a delay, and after allowing the appeal to be dismissed at the July general term held in the fourth district. It would be beyond |