Opinion
January Term, 1866
James Wheeler, for the appellant.
J.W. Gott, for the respondents.
The order made herein is not appealable to this court. This was an application to the discretion of the court, to allow the institution of a peculiar action. The court exercised its discretion by denying the motion — not affirming that such an action could not be sustained, but, as matter of propriety or expediency, refusing to authorize its institution. Upon that ground, it is not appealable.
The counsel have sought to avoid this difficulty by agreeing, as they allege, that the matter shall be determined as if the respondents had demurred to the complaint for want of equity, and the court had sustained the demurrer. This does not aid the petitioner, because it appears that the suit has never in fact been instituted. No defendants are in court, and no such decision has in fact been made. There has been "no actual determination," as the Code requires, of any such question by the Supreme Court. Therefore, this court has no jurisdiction to review the decision of the court below as to the order there made; and we have no disposition to determine the rights of third parties upon a given case, when those parties do not appear in the cause, and cannot be heard as to its merits.
The appeal is dismissed.
The appellant, as receiver of a mutual insurance company, presented his petition to the Supreme Court, at Special Term, praying for its advice and direction in the discharge of his duties as such receiver. His motion was denied, and the order denying the application was affirmed at General Term.
I see no authority in the Code for this court to entertain this appeal. It certainly does not fall within the purview of subdivision 1 of section 11. It is not a judgment in an action. Neither does it come within subdivision 2. It is not an order made in an action. It is, also, not within the letter or spirit of subdivision 3. It is not a final order affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment. It would be difficult to maintain that the petitioner has a right to the advice and direction of the Supreme Court, as to the manner in which he shall discharge his duties as an officer of that court. Whether or not that tribunal will give such advice and direction, is purely a matter of discretion with it; and, on this ground, an appeal from an order refusing to exercise such discretion is not maintainable.
But it is very clear that no substantial right of the petitioner is affected by this order. It would doubtless be convenient for the receiver to have the advice and direction of the court as to the discharge of his duties, and its opinion upon the various questions suggested by him. But it certainly would be very unseemly that these important questions should be decided on his ex parte application, without argument, and without hearing the parties affected by such decision. If we could look into the merits of the order appealed from, we should have no hesitation in saying that the Supreme Court acted wisely in withholding its opinion upon the questions submitted, under the circumstances.
The appeal should be dismissed, with costs.
Appeal dismissed.