Velleman v. . Rohrig

193 N.Y. 439 | NY | 1908

Upon the argument it was insisted by the learned counsel for the respondent that no appeal could be taken to this court, without permission, from an order for the distribution of surplus moneys arising upon the foreclosure of a mortgage by action.

Such appeals have been before us since the adoption of the revised Constitution, and we have uniformly held that we had jurisdiction to decide them, because such orders, even if entitled in the action, are not made therein, but in a special proceeding commenced after the action is ended by a final judgment which effects every object that the action was brought to accomplish. (Bushwick Savings Bank v. Traum, 158 N.Y. 668;26 App. Div. 532.) As it seems that we have made no public announcement of the rule, for in the case cited we affirmed on the opinion below and in other cases without an opinion, we now announce it for the information of the profession.

We think that the action of the courts below in the proceeding now before us was in accordance with law for the reasons stated in the prevailing opinion of the Appellate Division, and we, therefore, affirm the order appealed from, with costs.

CULLEN, Ch. J., GRAY, HAIGHT, VANN, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.

Order affirmed.