
    COURT OF APPEALS,
    JANUARY TERM, 1848.
    William R. Gracie, Appellant, vs. William S. Pierson, et al., Respondents.
    An appeal from an order made at a special term of the Supreme Court in Equity, mil not lie to the Court of Appeals, until first re-heard at a general term.
    This was a motion made by the respondents to dismiss an appeal brought by the appellant, from an order made at a special term of the Supreme Court in Equity, held at the city of New York, on the 8th day of November, 1847—-J. W. Edmonds, Justice, presiding—the order was as follows:—•
    “ William R. Gracie v. Abraham G. Thompson et al. An order in the words and figures following, to wit: In the Supreme Court in Equity, held for the state of New York, on the 29th day of July, A. D. 1847—present, J. W. Edmonds, Justice—William R. Gracie v. William S. Pierson and others. On reading and filing copy, bond, affidavit, and notice of motion, &c., and after hearing counsel on both sides, it is ordered, that it be referred to Stephen Cambreling, Esq., referee, to ascertain, according to the practice of this court, the damages sustained by the Defendants,-James Freeland, Henry Sheldon, and William S. Pierson, by reason of the injunction heretofore issued out of the late Court of Chancery, on the application of the said William R. Gracie, in the suit brought by him as complainant against the said William S. Pierson and others, before the Chancellor; and that the said Freeland, Sheldon, and Pierson have leave to prosecute the said bond to be delivered to them or their solicitor for that purpose, if required, or that they have leave to apply to the court in the premises after such damages shall be ascertained, as they may be advised; filed July 29,1847; having heretofore been made in this cause at chambers, and the court now deeming that such order was unadvisedly granted under the present practice of this court; but it appearing that the parties interested in said order had fully acted under it, by attending for a length of time without objection, before the referee therein named, and that much testimony has been taken, and great expense incurred on such reference ; it is now ordered, the counsel for the respective parties having been heard, that the same order be now entered in this cause nunc pro tunc, and that said order and all the proceedings which have been had under the same, be of the same effect and validity as if the said order had been made in open court. And it is further ordered, that the order entered in this cause on the 8th day of November, 1847, not having been
    
      duly settled, and not containing all the provisions intended to be entered therein, be struck from the files of the court, and this order entered in its place.”
    The special grounds upon which this motion was made and opposed, and which were argued before the court, were:
    1st. That the affidavit of justification of the sureties to the appeal bond was not entitled in the cause in which the appeal was made.
    2d. That the petition of appeal did not state the names of the parties who were respondents.
    3d. That the subject-matter of the appeal involved simply questions of practice and matters which were in the discretion of the court below, and not the subject of appeal.
    The counsel for the appellant, however, upon his affidavit, insisted as a ground of opposition to the motion, that there had been no return or transcript of the papers on the order appealed from, returned, or filed in this court, but that the same remained in the Supreme Court, and the petition of appeal had not been answered by the respondents.
    A. L. Jordan, Counsel for Respondents.
    
    R. W. Peckham, Counsel for Appellant.
    
   Before the close of the argument, the court intimated to the counsel that they were under the impression there was a point of considerable importance involved in this motion, which had not been alluded to, to wit: whether an appeal could properly be brought to this court upon an order made at a special term of the Supreme Court in Equity, without first having been reheard at general term.

The counsel upon both sides thereupon discussed this question, and the court held the case under advisement, after which, Jewett, Chief Judge, gave the decision of the court, that no appeal could be brought to this court upon an order made at a special term of the Supreme Court in Equity, without first having been reheard at general term; and dismissed the appeal with costs, and costs of the motion, upon that ground solely.  