Porter v. Parmly , 6 Jones & S. 490 ( 1875 )

By the Court.—Curtis, J.

This appeal should have been taken within thirty days after written notice of the order, in conformity with § 332 of the Code, so far as it is an appeal from the order of reference of April 22,1873. Whatever right the General Term may have to review this order of April 22nd, 1873, as an intermediate order, that right, can not be exercised in an appeal that is without force or validity.

It appears to be clearly settled, that a party can not go on under any order, and take an advantage from it, without waiving his right to appeal. The administration of justice could not be properly, conducted, if a party could proceed with a trial before a referee, and then, after an adverse result, be held not to have waived the right to appeal, but to be entitled to a,n appeal from the original order of reference, a year and a half after it was served upon him (Ubsdell v. Root, 3 Abb. Pr., 142; Radway v. Graham, 4 Abb. Pr., 468).

It is not claimed on the part of the appellant, on the hearing of this motion, that he was compelled to proceed with the trial in a mode that the law does not allow, nor are the papers upon which the order of reference was granted, before us.

The appeal from the order of reference of April 22nd, 1873, should be dismissed.

Monell, Ch. J., concurred.