
    COURT OF APPEALS,
    MARCH TERM, 1849.
    William K. Blair, Appellant, vs. Stephen D. Dillaye, Respondent.
    Where the Supreme Court made an order “denying a rehearing,” (of an order appealed from a special term) and subsequently allowed an amendment of the order, so that it appeared “that the merits of the cause, as well as the other questions presented, had hem considered by the court, and then ordered that a releecuring he denied.” Held, on appeal to this court from that order, that it must be reversed on the ground that the rehearing was a matter of right to the party, and not of discretion with the court. (Gracie v. Freeland, 1 Comst. 228, ante, page 218.)
    The Supreme Court should have granted the motion for a rehearing, and made an order reversing or affirming the order or decree of the special term.
    The appeal in this cause was brought upon an order of the Supreme Court in equity denying a rehearing. The cause was brought on for argument at the last November term at Syracuse, and it appearing, from the order of the Supreme Court appealed from, that the general term denied a rehearing of the cause, which was appealed from an order or decree of the special term in equity—without stating, or it any where appearing in the order that the merits of the cause had been heard or passed upon. Mr. H. J. Sedgwick, for the appellant, stated to the court that the cause was fully heard, and the merits passed upon at the general term, hut the order was informally entered, and asked leave to apply to the Supreme Court to amend their order, and that the cause stand over to the next term, which was granted.
    On the argument of the cause at this term, Mr. Geo. E. Comstock, for appellant, took the same ground as at November term, that the order of the Supreme Court denied a rehearing in the canse, and asked a reversal (under former decisions of this court,) of that order.
   Mr. H. J. Sedgwick, for respondent, read an amended order of the Supreme Court, as follows: On reading and filing affidavits in this cause, and after hearing Mr. Sedgwick for the Plaintiff, and Mr. Euger for the Defendant, on motion of Mr. Sedgwick, ordered that the order entered in this cause on the 4th day of May, 1848, be amended, so as to read as follows, viz: “A motion having been made for a re-hearing in the above cause on the part of the Defendant, on motion of Mr. Sedgwick, after hearing counsel opposed, and the merits of this cause as well as the other questions presented having been considered by the court, it is ordered that said motion be denied, with costs, and that neither party recover costs of this motion to amend said order,” and insisted that from the amended order, it appeared that the merits of the case were heard and passed upon, by the general term; and that the cause should upon that order, be heard on the merits in this court.

The Court held that the Supreme Court should have granted the motion for a re-hearing, and made an order reversing or affirming the order or decree of the special term—and such decision should appear in the. order appealed from. The order of the Supreme Court denying a re-hearing was reversed.  