Opinion
Argued May 25, 1939
Decided July 11, 1939
Appeal from the Supreme Court, Appellate Division, Fourth Department.
Michael J. Larkin for appellant. Edward A. Wolff and Stoddard M. Stevens for respondent.
The appeal must be dismissed upon the ground that this court is without jurisdiction as the order is not a final order. The order does not end the proceeding in so far as appellant is concerned as to any part thereof. It does not irrevocably determine its rights, irrevocably change its position, or sever the proceeding. The reason why it is not irrevocable is that the payment is to itself and can always be restored. There still remains the necessity of a further hearing in the Surrogate's Court. ( Matter of Clift, 256 N.Y. 680; Maggi v. Sabatini, 250 N.Y. 296; Cohen on The Powers of the New York Court of Appeals, p. 31, § 9.)
The appeal should be dismissed, with costs.
CRANE, Ch. J., LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur; O'BRIEN, J., taking no part.
Appeal dismissed.