Opinion
Argued June 7, 1898
Decided October 4, 1898
Edward Winslow Paige for appellants.
Howard A. Taylor for respondent.
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 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. ( 150 N.Y. 117) this court held that an order of the Appellate Division, affirming an order of the Special Term directing the receiver of an insolvent corporation, appointed in an action for its dissolution, to pay out of the funds in his hands the claim of a certain creditor, was not an order determining a special proceeding, but was an order in the action and was not appealable as of right to this court. The same doctrine was held in People v. St. Nicholas Bank ( 150 N.Y. 563). In Merriam v. Wood Parker Lithographing Co. ( 155 N.Y. 136), which was an application by an assignee for restitution of money paid upon the debt of an attachment creditor, where upon appeal to this court the attachment was set aside, it was said that an order granted by the Appellate Division awarding restitution which was entitled and made in the action, was simply a motion or application in the action incidental to it, and not in any just sense a distinct or independent proceeding. In Jewelers' Mercantile Agency v. Rothschild ( 155 N.Y. 255) it was held that an appeal could not be taken to this court from an order, unless it finally determined a special proceeding, and that an order punishing the defendant for contempt in failing to pay a judgment was an order in the action and not in a special proceeding. The last part of this decision was based upon the provisions of the Code. In Van Arsdale v. King ( 155 N.Y. 325) this court decided that the provisions of section 190 of the Code of Civil Procedure allowing appeals as of right to the Court of Appeals from judgments or orders finally determining actions or special proceedings, refer only to final judgments in actions and final orders in special proceedings, and that under that section an appeal cannot be taken to the Court of Appeals from an order in an action, although it is one which ends the litigation. In Matter of Attorney-General ( 155 N.Y. 441) this court determined that an order for the examination of a witness, before the commencement of an action under a special statute, was not a special proceeding, and, hence, that the order of the Appellate Division, vacating an order for such an examination, was not an order finally determining a special proceeding, and was not appealable to the Court of Appeals.
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.