
    Andrew Moore and others, appellants, v. Giovanni Raggi and others, respondents.
    It is entirely discretionary with the orphans court to restate an administrator’s account or not, and from such determination no appeal lies.
    Appeal from Hudson orphans court. Motion to dismiss appeal.
    
      Mr. 8. Sowell Jones, for the motion.
    
      Mr. C. 8. See, contra.
   The Ordinary.

The appeal is taken from an order of the orphans court of Hudson county, refusing to restate a second time the final account of the appellant as administrator, and set aside mi order of distribution made on the first restatement of the-account. The refusal to restate the account was based on the assertion that the court had no power to restate an account a second time. The court were at liberty to refuse-to restate the account at their discretion, and, from their order refusing to restate, no appeal will lie. It does not even appear that there was any new matter to be laid before the court. Eor augbt that appears, everything which is-stated in the petition as reason for restating the account,, had been previously passed upon by the court. It is clear that it should and must be left to the discretion of the court, to say whether there shall be a restatement of an account or not, and that their determination on the subject ought to be final and not reviewable on appeal. Otherwise the power of appeal would be unlimited.

It was held in New York that an appeal would not lie from an order refusing a rehearing of a motion for instructions to a master (Williamson v. Hyer, 4. Wend,. 172), nor from an order denying a motion to vacate an order that a bill be taken pro confesso. Rowley v. Van Bethuysen, 16-Wend. 382.

It is laid down that the only case in which a party cannot-appeal from the decision of the court, is where the determination complained of is merely the result of the exei’ciseof discretion on the part of the judge, in a case where the-matter was fairly a subject for the exercise of discretion; in such case the practice of the court will not allow an appeal from the discretion of one judge to that of another. 2 Dan. Ch. Pr. (4th ed.) 1462, 1463. See, also, Powell on Appellate Proceedings § 78.

The granting or refusal of the motion in this case appears to me to have beeii a matter resting wholly in the discretion of the court, and not reviewable on appeal. If the appellant was aggrieved by the decree upon the final account, and the order of distribution based thereon, of which he complains, he might have appealed from them.

The appeal will be dismissed, with costs.  