McGeoch v. Bullions , 2 Barb. Ch. 34 ( 1846 )

The Chancellor.

In the case of an appeal from a decree directing the taking of an account, or directing a reference to compute the amount due upon a mortgage, where the principles upon which the account is to be taken, or the computation is to.be made, are not the subject' of contest, upon an appeal from a vice chancellor, it might be proper for this court to allow the account to be taken, or the reference to be proceeded in pending the appeal, at the risk and expense of the respondent. Whether it can be done, however, in the case of a final deqre.e, under the 116th rule of this court; is a matter of some * doubt. But where the appeal calls in- question the principles upon which the account is to be taken, against the appellants, as well as the fact of their liability to account at all, it might be productive of unnecessary expense to allow the account to be taken until the appeal was disposed of here. At least it wot ild be unreasonable to allow it, in this case, without requiring the respondents to stipulate to pay the appellants all the expense to which they may be subjected, in taking the account, if the decree should be reversed, or be modified in any respect, so as to require the account to be taken anew.

I am therefore of opinion that it will be better for both parties that the taking this account should be suspended, until the principles upon which the account is to be taken, as well as the right to the account itself, shall be finally settled, upon the appeal.

The application must therefore be denied.