Estate of Henry

Rollins, S.

Tbe procedure relating to appeals from decrees and orders of tbis court is established by chapter 18, title 2, article 4 of tbe Oode. Section 2570 provides that an appeal may be taken from any decree or from any order “affecting a substantial right.” It is declared by section 2584 that, except as otherwise expressly prescribed, “ a perfected appeal has the effect, as a stay of proceedings to enforce the decree or order appealed from, prescribed in section 1310, with respect to a perfected appeal from a judgment” -By operation of section 1310 such an appeal affects a' stay of all proceedings to enforce a judgment or order appealed from, “ except that the court or judge from whose determination the appeal is taken may proceed in any matter included in the action or special proceeding, and not affected by the judgment or order appealed from or not embraced within the appeal.”

Now, I do not think that,, by force of the statute just quoted, the appeals which hare been taken by Evan J. Henry from the-two orders lately made by the surrogate, have operated to stay the trial of this probate controversy which is now reached regularly on the calendar. The order denying the motion for the union of the issues theretofore directed to be separately tried, cannot be held to involve a “substantial right” within the meaning of section 2570. It affects mere modes of procedure that are entirely within the control of the trial court (Arthur agt. Griswold, 60 N. Y. 143; Whitney agt. Townsend, 67 id., 40; Miller agt. Porter, 17 How. Pr., 526). The order denying the motion for the issuance of commissions is, doubtless, appealable (Helme agt. N. Y. C. R. R. Co., 79 N. Y., 175; Wallace agt. Am. Lin. Thread Co., 16 How. Pr., 403), but in what manner and to what extent, if 'at all, is the appeal which has been taken effectual as a “stay,” within the meaning of section 1310 ? If the surrogate had made an order granting the application for commissions, it is clear that a perfected appeal would have operated to prevent their, issuance; but an appeal from an order denying such an application does not, it seems to me, have practical operations as a stay at all.

It has never been held, so far as I can ascertain, that an appeal, either from an order denying, or from an order granting a commission, accomplishes per se a suspension of the trial of the action or proceeding for the purposes of which the aid of the commission has been sought. The, mischiefs that would result from such a practice can scarcely be overestimated. The court of original jurisdiction would lose all control of its calendar. It would be utterly powerless to compel tbe trial of a cause, if it suited the pleasure of any of tbe parties thereto, even on tbe most frivolous pretext, to move for the issuance of a commission, and to appeal from an order denying bis motion. E such were tbe true state of tbe law, tbe fact would long since, I think, have been ascertained and promulgated. E the surrogate has erred in denying tbe contestant’s application for tbe issuance of commissions, tbe error will be, in due time, corrected, and tbe order of denial reversed. Besides, in case tbe trial of tbe cause shall now be directed to proceed, tbe contestant can except to that direction, and avail himself of that exception by appeal, in tbe event that a decree shall be hereafter entered adverse to bis interests. Tbe trial must proceed.