Tyler v. Simmons

Citations

• 6 Paige Ch. 127
• 1836 N.Y. LEXIS 214
• 1836 N.Y. Misc. LEXIS 104

Syllabus

<p>A party cannot bring on the hearing of exceptions to a master’s report upon the merits at the same time when applies to set aside the report for irregularity, or to refer it back to the master to take further testimony and review his report.</p> <p>Where the report is irregularly made, the party who wishes to take advantage of the irregularity should not except to the report until the question of irregularity is determined. And if he excepts to the report after he has notice of the irregularity in the proceedings before the master, it is a waiver of such irregularity.</p> <p>The proper course, where a party wishes to apply to set aside a report for irregularity, is to obtain an order to enlarge the time for filing his exceptions ; for the purpose of giving him an opportunity to apply to the court, and have the question of regularity disposed of before he excepts.</p> <p>Exceptions to a master’s report are only proper in those cases in which he hag come to a wrong conclusion upon the matters which were referred to him to ascertain or decide. Where he proceeds irregularly, or neglects to report upon the matters referred to him, the proper course for the party aggrieved thereby is to apply to the court to set aside the report, or to refer it back to the master to perfect the same.</p> <p>A master’s report cannot be excepted to fór irrelevancy or impertinence. The proper course in such a case is to apply to the court by motion to expunge the impertinent matter, if either party is aggrieved by the introduction of such matter into the report.</p> <p>Where two distinct orders are made in the same cause they may be both included in one notice of appeal and in the same appeal bond; provided the penalty of the bond is sufficiently large, and the condition of the bond is broad enough, to secure the payment of the whole amount required to be secured on both appeals.</p> <p>if a party in whose favor an interlocutory order or decree is made wishes to limit his adversary’s righ