Peel v. Elliott 16 How. Pr. 477

SUPREME COURT.

Jonathan Peel, &c. agt. James Sutton Elliott.

After appeal taken from an order, denying a motion, the renewal of that motion, under leave given in the order, precludes the hearing of the appeal, pending the renewed motion.

New-York General Term,

September 20th, 1858.

Present, Henry E. Davies, Josiah Sutherland and Henry Hogeboom, Justices.

The defendant having appealed from the order denying his discharge, subsequently renewed his motion on affidavit, under leave given in that order.

The plaintiff obtained time to answer the affidavit, and pending the renewed motion, the defendant moved the appeal in its order on the non-enumerated calendar.

The plaintiff’s counsel objected preliminarily that, by availing himself of the leave granted, the defendant had elected to abide by and could not impeach the order in question, and that accordingly, his appeal was untenable.

The court allowed the objection, and refused to hear the appeal.

Henry Whittaker, for plaintiff.

C. A. Seward, for defendant.