
    COURT OF APPEALS.
    Derick C. Lansing and others, Complainants, vs. David Russell and others, Defendants.
    The awarding or refusing an issue to be tried at law, and the granting or refusing a new trial, are matters resting entirely in the discretion of the chancellor. Such orders are not the subjects of appeal to an appellate court. Quiere? Whether they are the subjects of review, when the final order upon the merits is considered.
    
      January 15, 1850.
    Bill filed in April, 1844, to set aside two deeds of real estate, on the ground that they had either been forged, or had been obtained by force or fraud. After answer and replication, the chancellor,
    
      in April, 1845, ordered several issues to be tried at law, touching the matters of fact in dispute between the parties. A trial was had at the Dutchess circuit in November, 1845, when the jury found a verdict for the defendants on all the issues. The complainants made a case containing the evidence on the trial, and moved the chancellor for a new trial, on the ground that the verdict was against the weight of evidence. In October, 1848, the chancellor made an order, as of August 10,1847, granting a new trial of the issues as to one of the deeds, and denying a new trial as to the other deed. From this order both parties appealed to this court, and made a case containing the ¡headings, the issues, the evidence given at the circuit, and the order in question.
    D. Buel, Jr., for the complainants,
    
    commenced the argument, when the court suggested, that the granting or refusing a new trial in such a case was a question addressed entirely to the discretion of the chancellor, and expressed a doubt whether an appeal would lie. Mr. Buel said he had examined that question, and cited the following authorities for the purpose of showing that it was a proper case for a review: 2 Smith’s Chan. Pr. 84-6 ; 1 Dow & Clark, 139; 5 John. Ch. 156-7 ; 7 Brown’s Parl. Cas. 1, 208; 1 Knapp’s Rep. Priv. Coun. 73; 1 Barb. Ch. Prac. 456-460; 3 Russell’s R. 441; Stat. of 1839, p. 292; Rule 140, Chancery rules of 1844 ; 3 Paige, 457; 2 Daniel’s Chan. Prac. 1289, Perkins’ Ed., Harrisburg’s Ed. p. 730 ; 1 Mylne & Keene, 253.
    S. Stevens, for the defendants,
    
    also argued in favor of sustaining the appeals. He cited 2 Simons’ B. 42, 44.
   The court said they would suspend the argument on the merits for the present, and look into the preliminary question.

On a subsequent day,

Bronson, Ch. J.,

said: We have considered the preliminary question which was" mentioned on the opening of the argument, and are confirmed in the first impression, that an appeal will not lie. In cases of this kind, all the books agree that the awarding or refusing an issue to be tried at law, and the granting-or refusing a new trial, are matters resting entirely in the discretion of the chancellor. He may ask the aid of a jury to inform his conscience, or he may decide without such assistance. He may order a new trial although the judge who presided at the circuit is satisfied with the verdict; and he may do it for reasons which would have little or no influence in a court of law. He may refuse a new trial, although there were errors in point of law at the circuit, and even though dissatisfied with the verdict. He may decree in accordance with the verdict, or he may disregard the finding of the jury, and decree the other way. In short, the jury and the verdict are things which the court may use or let alone as it sees good. It would seem to be quite obvious, that the order which the court makes on a motion for a new trial is not a proper matter for review in an appellate court. There are two or three cases in England where the House of Lords has reviewed such an order on appeal; but the question whether it was proper to do so was neither made nor considered. In this state it is settled, that there can be no appeal from a decision of the Court of Chancery upon a question addressed to its discretion. (Fort v. Bard, 1 Comst. 43 ; Schermerhorn v. Mohawk Bank, id. 125; Spaulding v. Kingsland, id. 426; Van Dewater v. Kelsey, id. 533; Marvin v. Seymour, id. 535; Hazleton v. Wakeman, Nov. Tr. ’48; Sherman v. Felt, March Tr. ’49; Sherman v. Daggett, March Tr. ’49.) In the case of Gandes v. Lord, (May Tr. ’49,) there was an appeal from an order of the chancellor directing an issue at law; and the appeal was dismissed after an argument on the merits, on the ground that awarding or refusing the issue was a matter resting in the discretion of the Court of Chancery.

The parties cannot come here until after a decree on the merits of the controversy. Whether the order in question can then be considered is a point which need not be settled at this time. Appeals dismissed.

Note.—The following cases referred to in the above opinion will be found reported as as follows: Hazleton v. Wakeman, 2 Howard’s Pr. R. 357; Sherman v. Felt, id. 425; Sherman v. Daggett, id. 426.  