242 A.D. 634 | N.Y. App. Div. | 1934
Order directing disbursement of fund reversed on the law and proceeding dismissed, with costs. This proceeding for equitable relief was instituted by notice of motion and petition. The relief sought, and granted by the order under review, is such as may be granted only by a judgment in an action with all parties in interest properly before the court, and may not be obtained in this informal manner. The question of jurisdiction was sufficiently raised on the original application by the respondent, appellant, and was not waived. Those who invoke the powers of the court must do so by means of the procedure provided by the Legislature. E the plaintiff and those similarly situated are aggrieved, their remedy is by action, or in the pending action to foreclose the mortgage securing the bonds. Young, Hagarty, Carswell, Seudder and Davis, JJ., concur.