156 N.Y. 645 | NY | 1898
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *647
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *648 The first question presented is whether the appeals herein should be dismissed. The respondent contends that the orders from which they were taken were in the action, and, hence, not appealable to the Court of Appeals. The appeal to this court was taken as a matter of right and not by the permission of the court below. Therefore, unless the orders appealed from were final orders in a special proceeding, it is obvious that we have no jurisdiction to review them. Such an appeal is prohibited both by the Constitution and the Code of Civil Procedure. (Const. art. 6, § 9; Code, § 190.)
Thus, the single question presented upon this branch of the case is whether the orders of the Appellate Division, reversing the orders of the Special Term settling the account of the foreclosure receiver and refusing to direct the attorney for the sequestration receiver to pay over to the former the money in his hands, were final orders in a special proceeding. It seems to us they were not, but that they were intermediate orders in the action.
The orders of the Special Term were granted upon motions *649 entitled in this action, and related solely to a fund which came into the hands of the mortgage receiver. He was an officer of the court appointed in this action. If at all, it was by virtue of that appointment that he became entitled to the fund in dispute. The action was foreclosure, and its purpose was to sell all the mortgaged property and apply the avails to the payment of the mortgage debt. Whether the mortgage was a lien upon the property from which the fund in question arose was directly involved in the action. That question was presented to and determined by the court as a motion therein. No objection was made to the manner in which it was presented, so that, confessedly, the procedure by motion was proper. As the extent of the mortgage lien was involved in the suit, and was determined upon a motion therein, it must be regarded as a motion in the action, and not as a special proceeding. The determination of that issue was necessary to a complete determination of the action. It was as essential to determine what property was covered by the mortgage, as it was to ascertain the amount due. Had a motion been made to ascertain the amount due, and had the court, on such motion, ascertained and stated it in an order, it would not be claimed that the order was in a special proceeding, or that it was final. Obviously, such an application could be regarded only as a motion in the action. It is equally manifest that the application to the court to determine whether the property in question was a part of the mortgaged property was merely an application in the action, and that the order granted in pursuance of it cannot be properly regarded as a final order in a special proceeding.
In People v. American Loan Trust Co. (
The principle of these cases seems to be decisive of this question, and is adverse to the contention of the appellants that the orders are appealable.
The appeal should be dismissed, with costs.
All concur, except O'BRIEN, J., not voting.
Appeal dismissed. *651