Opinion
September Term, 1865
ACTION upon an undertaking given by defendants for the appearance of one William Breck, who had been arrested on a capias ad respondendum. The undertaking was in the usual form. After action commenced, the defendants at Special Term, moved for an order allowing them, on payment of costs, to surrender the said Breck in discharge of their liability as bail for his appearance. The court granted the motion and made the order prayed for. The plaintiff appealed to the General Term, where the appeal was dismissed on the ground, that the granting of the order rested in the discretion of the court at Special Term. The plaintiff appealed to this court.
HELD, that the General Term erred in dismissing the appeal, even though the order appealed from was clearly in the discretion of the court; inasmuch as the order was one affecting a substantial right, in effect determining the action, and preventing a judgment from which an appeal might have been taken. The order of the General Term was reversed