
    NEW YORK COMMON PLEAS.
    Stephen T. Clark agt. James Brooks and others.
    On an appeal from an order of sale and reference, where a receiver has been appointed and has possession of the property, a stay of proceedings pending the appeal will be granted, where it appears the ease is soon to be tried on the merits, when a reference may be dispensed with.
    
      
      New York Special Term,
    February, 1864.
    Motion by defendants to continue a stay of proceedings pending the appeal taken by them from the order of sale and reference made in this action. .
    John McKeon, for motion.
    
    Henry A. Cram, opposed.
    
   Cardozo, J.

I think very much of the learned argument made before me may be laid out of view in determining this motion.

It will be best to defer considering whether the order appealed from be reviewable, until the question is presented at the general term.

I would only remark that while, certainly, there are very many instances where the decision of a judge rests so exclusively in his discretion that it cannot be appealed from, and ought not in any way to be reviewed, yet, in my judgment, the courts have strayed very far from true principles in the application of this rule to particular cases; and it may become necessary to retrace their steps.

There is one consideration which is of controlling influence, in my opinion, upon this motion. The case is soon to be tried on its merits, and the judgment which will then be rendered may, probably, entirely dispense with the contemplated reference—perhaps with any reference whatever.

To permit the reference mentioned in the order in question to proceed at present would be to allow an inquiry to be conducted, at considerable expense and labor, which may prove to be entirely valueless for any purpose of the case.

When a very brief time must decide whether any, and if any, what character of reference will be necessary, I do not think it proper to permit one of doubtful utility to be prosecuted.

I have not failed to consider the suggestions pressed with so much zeal and ability by the learned counsel for the plaintiff, as to the impropriety of the court, through receivers, conducting a newspaper of a political character (and I add whether political or otherwise) longer than is requisite to protect the interests of all parties. But as it has been conducted so long, I am not able to perceive that either the court, or the plaintiff, whose interest, it should be remembered, even on his own statement, is very trifling compared with that of the defendants, can be materially affected by its continuation for a short time longer, until the merits of the case can be decided.

Motion to continue stay granted—no costs to either party.  