204 N.Y. 238 | NY | 1912
The action is in form for a partition or sale of real property; but as between the appellants and respondents it is in fact an action to determine the title.
Certain of the defendants have appealed to this court from an order of the Appellate Division, which affirmed a judgment of the Special Term containing the usual provisions decreeing that a sale of the premises in question was necessary, appointing a referee, etc., and also *239 deciding that the appellants have no right or title to such premises. The respondent has moved to dismiss the appeal upon the ground that the order appealed from is not final, but merely interlocutory, and that, therefore, this court, under section 190 of the Code of Civil Procedure, has no jurisdiction to review it.
In the case of Tilton v. Vail (
In this case, as has been shown, the judgment of the trial court not only excluded the appellants from sharing in the proceeds of sale, but finally disposed of their claim of title to the whole. So far as this issue is concerned, the decision is final. With the further proceedings for sale and distribution of proceeds the appellants are not *240 concerned. Had they waited with their appeal until the entry of final judgment confirming the referee's report of sale, the property they claim would have been sold and in the hands of innocent purchasers for value. And it is obvious that if a decision favorable to the appellants should be rendered in this court, their right to adequate relief would be at least uncertain, if not entirely cut off. As to a party in a partition suit who claims an interest in the property and who is adjudged to have no interest therein, the judgment is final, although it is interlocutory as between the parties who are adjudged to have interests in the property, and who are, therefore, concerned in the division of the proceeds to be made under the final judgment.
For these reasons the motion to dismiss the appeal should be denied.
CULLEN, Ch. J., HAIGHT, VANN, WILLARD BARTLETT, CHASE and COLLIN, JJ., concur.
Motion denied.