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 fol*423lows, 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.