
    MATTER OF BRISTOL.
    
      Supreme Court, First District; General Term,
    
    
      September, 1863.
    Pasty.—Appeal.
    Although a stranger to the action may have been allowed to apply to the court for relief against proceedings in such action, yet he has no right of appeal from an order denying his application.
    
    
      Appeal from an order denying the prayer of a petition to have injunction modified.
    In an action brought by Gorham D. Abbot against the American Hard Bubber Go. and others, the plaintiff obtained an injunction, which, among other things, restrained the defendants Poppenhusen & ELonig from paying notes to the amount of $27,000, which they had given to the company in payment of a transfer of property, effected, as it was claimed, in fraud of the rights of the plaintiff. The parties subsequently agreed upon an order settling the principles upon which final judgment should be rendered, but the actual'judgment had not been given. William B. Bristol, a trustee in insolvency of the Bubber Co., appointed by the Probate Court of Bethany, Connecticut, under the laws of that State, without becoming a party to the action, applied for a modification of the injunction » so as to allow these notes to be paid to him. His petition was denied (Ante, 184), and the petitioner appealed.
    
      Thomas G. Shearman, for the respondent, claimed that the appeal should be dismissed. Ho one but a party to the action can appeal, even from an order denying his motion. (Martin a. Kanouse, 2 Ahbotts’ Pr., 390.) /
    
      William E. Curtis, for the appellant.
    In an equity suit like this, the court is ever open to be approached by any petitioner whose rights or duties are affected by the litigation. The comity of States, and the long-settled practice of the court, entitle him to relief from the injunction. (Sill a. Worswick, 1 H. Blackst., 665; Bird a. Caritat, 2 Johns., 259; Story’s Confl Laws, 414-421; Bank of Augusta a. Earle, 13 Pet., 590.)
    
      
       Compare McKenzie a. Rhodes, 13 Ante, 337; Matter of Cavanagh, 14 Ib., 258.
      In Sherman’s Appear, in the Matter of the Parish Will Case (Supreme Court, First District; General Term, 1858), it was Hdd by the court (Davies, P. J.), that the parties to a proceeding for the probate of a will and codicils before the surrogate, who, if the will is established, will take nothing by the codicils, and whose interests are therefore unaffected, whether the decision of the surrogate in reference to the codicil is affirmed or rejected, may, nevertheless, appeal from the decision of the surrogate admitting the codicils to prohate. “They are,” said the court, “ parties to the proceedings before the surrogate. They have been cited to appear before him, and have been there ; and if the decision as to the will should not be sustained, they would have a direct interest in the property passing under this codicil.
      “ The provisions of the.Bevised Statutes, on the subject of appeal from the surrogate, are, that after any will of real or personal estate, or both, shall have been proved before a surrogate, any devisee or legatee named therein, or any heir or next of kin to the testator, may, within three months thereafter, appeal to the Supreme Court from the decision of the surrogate, either admitting such will to record, or probate, or refusing the same. (2 See. Stat., 66, § 69.)
      “ By section 92, p. 68j same volume, it is declared that the term * will,’ as used in that chapter, shall include all codicils as well as wills.
      “We think, therefore, under these provisions, these appellants had the right to appeal to this court from that point of the judgment of the surrogate admitting to probate the codicil of August 29, 1849.”
    
   The Court (Sutherland, P. J., Ingraham and Leonard, JJ.)

sustained the preliminary objection, and directed that the appeal be dismissed, with $10 costs.  