Henry J. Rogers, Respondent, v. William F. Durant

Henry J. Rogers, Respondent, v. William F. Durant. (Argued April 28, 1874; decided May 26, 1874.) An order appointing a referee and requiring one who has refused to make an affidavit, claimed to be necessary for the purposes of amotion, to appear before such referee and make affidavit (Code, § 401), does not affect a substantial right of the witness and is not reviewable in this court. This was an appeal by Charles W. Durant from an order of the General Term of the Supreme Court, affirming an order of Special Term, denying a motion on the part of appellant to vacate an order granted under section 401 of the Code, appointing a referee to take the deposition of appellant to be used on behalf of the plaintiff upon two motions herein, and requiring the appellant to appear and attend before the referee. The appellant claimed that the order appointing the referee was void, having been made by a judge out of court, and that therefore he had a legal right to have it set aside. Held, that if the order was void there was no need of an application to set it aside; if not void, no substantial right of the appellant was affected by the refusal to set it aside ; appeal, therefore, dismissed. Carlisle Norwood, Jr., for the appellant. Ira Shafer for the respondent. [MAJORITY — Rapallo, J.,] Rapallo, J., reads memorandum for dismissal of appeal. All concur. Appeal dismissed.