Burgoyne & Co. v. Perry

The opinion of the court was delivered by

Murray, Chief Justice, with whom Wells, Justice, concurred.

This is an appeal from the judgment of the court below overruling a demurrer. Upon the first argument of this cause, this court dismissed the case, on the ground that an appeal would not lie from an interlocutory decree or order. This opinion was evidently made without due consideration of our statute, and the court was doubtless impelled to the conclusion to which they arrived by their knowledge of the practice in other states. We admit without any hesitation that the statute giving an appeal from interlocutory decrees, and orders of inferior courts, is not in consonance with our opinions of correct practice. Tet a single glance at the act regulating appeals, passed April 26th, 1851, is conclusive upon this court, and shows that the legislature evidently intended, and have so expressed, that an appeal should lie from every order and decree of the court below, which affects a substantial right. Not only is this evident from the language of the statute itself, but the provision of the Practice Act, dividing the terms of this court, and the District Court, into general and special terms, and giving to this court jurisdiction of such appeals at special terms, is conclusive, even were the statute doubtful, which we do not conceive it to be.

It may in some cases be difficult to determine whether the order affects a substantial right (in the language of the statute); but when the court has determined that such right is affected, then the right of appeal clearly attaches.

[55]We are of opinion that the demurrer was well taken in the court below, and that Laffier is a necessary party to the adjustment of the present controversy, and should have been joined as a co-défendant.

The former judgment of this court, for the reasons above stated, is overruled, and the judgment of the court below is reversed, with costs; hut giving to the respondent leave to amend his complaint, by making Laffier a party defendant to the suit.