
    TOMPKINS v. SOULICE.
    September, 1852.
    An order of the supreme court affirming a surrogate’s order refusing leave to discontinue an accounting, and directing the hearing to continue—since it is not a final order, is not appealable to this court.
    
    Tompkins having been superseded as guardian-by the appointment of Soulice, cited Soulice to attend a final settlement of his, Tompkins’, account; but after filing the account and the hearing of witnesses, he asked leave to discontinue the proceeding, in order that he might file a new account. The surrogate entered an order refusing the motion, and directing the hearing to proceed.
    
      The supreme court, at general term, affirmed the order.
    
      
       Compare Hartung v. The People, 26 N. Y. 158; Pearson v. Lovejoy, 53 Barb. 407.
    
   By the Court.

Ruggles, Ch. J.

In Messerve v. Sutton, (3 N. Y. [3 Comst.] 546), Catharine Messerve instituted proceedings before the surrogate of New York to recover a legacy, and cited the executors, who appeared and contested her right. The surrogate, after hearing, dismissed her petition. She appealed to the supreme court where the decision of the surrogate was reversed and he was directed to proceed with the account." On appeal to this court from the decision of the supreme court, a motion was made to dismiss the appeal on the ground that the judgment of the supreme court was not final. But it was held that the judgment of the supreme court was final as respected that court, and the motion was denied.

In another case determined in this court, there had been a final judgment in the common pleas of New York, which was reversed on writ of error by the supreme court, and a new trial ordered. An appeal from the judgment of the supreme court to the court of appeals was held to be well brought. But in both these cases, the original order in the court below, which was reversed in the supreme court, was a final judgment.

In that respect those cases differed from the present. We can not review the judgment of affirmance by the supreme court in the present case, because the surrogate’s order affirmed by the supreme court was not final.

The parties must proceed to a final determination in the surrogate’s court, and if the appellant in the present case should feel aggrieved by that determination he can then appeal; and if the order now appealed from be one affecting the merits of the case, it may be reviewed on that appeal.  