Tauton v. Groh.

TAUTON against GROH.

Court of Appeals, September Term, 1869. APPEALABLE ORDER.-DISCRETION NOT REVIEWABLE. -INTERPLEADER.-FORECLOSURE.

An order made under section 122 of the Code of Procedure,-which provides that in an action upon a contract, or for specific real or personal property, a defendant may apply on affidavit, to have a third person, who demands the same debt or property, substituted in his place, on his paying or depositing the debt or property, &c.,-is discretionary; and when made in a case within the provisions of the section, the court of appeals will not review the exercise of their discretion by the court below. *

* The cases do not establish any very clear test as to what orders are to be deemed discretionary, and therefore not reviewable except in case of gross abuse of discretion. The most important recent decision on the point, is that of King v. Platt, 3 Abb. Pr. N. S., 174, where it was held that if the application involved matter of strict legal right, it was in so far not discretionary; but in the nature of things, the distinction is sometimes difficult.

The following are the decisions of the court of appeals, which illustrate the question.

The general principle is that discretionary orders are not appealable, unless the power is shown to have been arbitrarily exercised. Forrest v. Forrest, 25 N. Y., 501. But orders involving matter of law and strict right are. Tracy v. First National Bank, 37 N. Y., 523, and cases cited; and see Abb. N. Y. Dig., tit. Appeal.

A refusal to exercise discretion on the ground of want of power, is appealable. Russell v. Conn, 20 N. Y., 81.

The exercise of the discretion given by section 317, to require security for costs of trustees, &c., is not reviewable in the court of appeals. Briggs v. Vandenburgh, 22 N. Y., 467.

So as to that granted by section 366, to allow a new trial in justice's Wavel v. Wiles, 24 N. Y., 635.

cases.

So as to that granted by Laws of 1843, p. 8, ch. 9, as to relieving a person from commitment for contempt in case of inability to pay fine, &c. People v. Delvecchio, 18 N. Y., 352.

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Tauton v. Groh.

Such an order may properly be made in an action to foreclose a mortgage. The provision is for the protection of a defendant, and it is no objection to granting the order that the substitution will produce litigation between a mother and daughter.

Appeal from an order.

Denial of a motion to set aside one of two judgments for the same cause, entered by mistake, the other having been meanwhile satisfied, is a matter of practice not reviewable. Pendleton v. Weed, 17 N. Y., 72.

The court will not review the denial or dissolution of a temporary injunction (Van Dewater v. Kelsey, 1 N. Y. [1 Comst.], 533, 534), unless the order was on the ground that plaintiffs could ultimately have no relief. In order to sustain such an appeal, the papers should show that the motion was denied on that ground. Hasbrook v. Kingston Board of Health, 3 Keyes, 380; 5 Abb. Pr. N. S., 399.

An order denying a motion to vacate an attachment against property, where the motion was made on the ground that, as matter of law and strict right, the attachment was illegal, is appealable. Tracy v. First National Bank of Selma, 37 N. Y., 523. But the contrary seems to have been held of an order refusing to vacate a judgment, in Foote v. Lathrop, 41 Id., 358.

Under the provision of section 11 of the Code,-allowing an appeal from an order affecting a substantial right,—an order which peremptorily and finally charges a party with the payment of a sum of money, great or small, which he ought not to pay, affects his rights, not in a matter of form, but of substance. Leslie v. Leslie, 6 Abb. Pr. N. S., 193 (N. Y. Com. Pl.); People v. New York Central R. R. Co., 29 N. Y., 418.

Orders respecting the re-adjustment or re-taxation of costs, are not reviewed by the court of appeals. People v. Lewis, 28 How. Pr. 470.

Nor is leave to discontinue an equitable action without costs. Staiger v. Schultz, 3 Abb. Pr. N. S., 377; De Barante v. Deyermand, 41 N. Y., 355. An order denying a motion that a receiver, plaintiff, pay costs to which a defendant has become entitled, is not discretionary within this rule. Columbian Ins. Co. v. Stevens, 37 N. Y., 536; S. C., 4 Abb. Pr. N. S., 122.

An order punishing a party as for contempt affects a substantial right. Sudlow v. Knox, 7 Abb. Pr. N. S., 411. An order refusing to punish does not. Batterman v. Finn, 40 N. Y., 340.

An order before judgment, for punishment for contempt, unless certain acts be done, is one made in the action; but is not appealable, because not final. New York, &c. R. R. Co. v. Ketchum, 3 Keyes, 24.

A denial of a motion, for an order which would have been nugatory

Tauton v. Groh.

This action was brought by Elizabeth A. Tauton, plaintiff and appellant, as executrix of Jesse Tauton, deceased, against Jacob Groh and others, defendants and respondents, for the foreclosure of a mortgage;

if granted, cannot be regarded as affecting a substantial right, Union Bank v. Mott, 27 N. Y., 633.

An order setting aside a sale in foreclosure, and ordering a reference to ascertain the equities of the parties, is not appealable to the court of appeals. Dows v. Congdon, 28 N. Y., 122.

Nor is an order under the act of 1862, referring an action by the receiver of a mutual insurance company. Sands v. Harvey, 19 Abb. Pr. 248.

An order dismissing an appeal from the special term to the general term, for neglect to give security required by an order for a stay of proceedings, is not a matter of discretion, but of strict legal right; and as the effect is to prevent a judgment from which an appeal to the court of appeals might be taken, it is appealable. Genter v. Fields, 1 Keyes, 483. The subdivision of section 11,-authorizing appeals from final orders, and in special proceedings, or after judgment, &c.,-is held not to give an appeal from an order denying a receiver's application for leave to sue; for such an application is addressed to the discretion of the court, and the order is not within this subdivision. The case is not altered by a stipulation that the matter shall be determined as if on demurrer. Matter of Reeve, 34 N. Y., 359.

Fort v.

Nor does this subdivision give an appeal from orders refusing to set aside defaults; for these are discretionary, and not appealable. Bard, 1 N. Y. [1 Comst.], 43; and see 426. This is so, whatever may be the ground on which the order was made. Schermerhorn v. Mohawk Bank, 1 Id., 125.

Nor does it give an appeal from orders denying motions to set aside verdict for surprise, &c., which rest in discretion. Selden v. Delaware & Hudson Canal Co., 29 N. Y., 634.

Nor from orders refusing to set aside a judgment for irregularity. Stark v. Dinehart, 40 N. Y., 342; Sherman v. Felt, 2 N. Y. [2 Comst.], 186.

Nor from orders allowing and adjusting costs under the statute, for such are not final orders affecting substantial right. McClure v. Supervisors of Niagara County, 4 Abb. Pr. N. S., 202.

Nor orders granting or refusing an extra allowance of costs in an action. Clarke v. City of Rochester, 34 N. Y., 355; McGregor v. McGregor, 32 Id., 479.

Nor orders striking out costs for irregularity. Thompson v. Bullock, 16 How. Pr., 213.

Tauton v. Groh.

and it now came before the court of appeals on an appeal from an order made by the general term of the supreme court, in the first judicial district, modifying but essentially affirming an order made by the special term.

Nor orders denying retaxation of costs and motion to correct judgment, nor an order dismissing an appeal from an order of the special term denying a motion to resettle a case. Hoe v. Sanborn, 36 N. Y., 93; S. C., 3 Abb. Pr. N. S., 189.

The adjustment of alimony in divorce is discretionary, and exceptions to the report of a referee appointed to aid the court in determining it, or to his admission or rejection of evidence, are not reviewable in the court of appeals. Forrest v. Forrest, 25 N. Y., 501; and see 4 How. Pr., 139.

The subdivision does not give an appeal from an order denying leave to appeal after the statute period has expired. Salles v. Butler, 27 N. Y., 638.

But it does include an order either granting or denying an application to set aside a judicial sale and for a resale on terms, for that closes finally a summary application, and is a "final order". Buffalo Savings Bank v. Newton, 23 N. Y., 160; King v. Platt, 3 Abb. Pr. N. S., 174; S. C., 34 How. Pr., 26. And if grounded on fraud, it is matter of strict legal right, and may be reviewed. King v. Platt, above. But if not urged as matter of legal right, it is discretionary, and will not be reviewed on appeal. Buffalo Savings Bank v. Newton, above; Dows v. Congdon, 28 N. Y., 122, and cases cited.

It includes an order vacating an attachment on grounds of legal right, after judgment recovered in the action. Wright v. Rowland, 4 Keyes, 165; S. C., 36 How. Pr., 248.

A legal right to issue execution is a substantial right, and when leave is necessary, an order denying leave, although upon the ground of alleged equitable offsets, is appealable. Betts v. Garr, 26 N. Y., 383.

Otherwise of an order refusing to set aside an execution issued after five years without leave; for this does not affect a substantial right, but is matter of irregularity and favor. Bank of Genesee v. Spencer, 18 N. Y., 150. So is an order opening a judgment by default, suffered by mistake, in foreclosure. McReynolds v. Munns, 2 Keyes, 214.

An order denying restitution to a party who has been dispossessed under a writ of assistance which has since been vacated, affects a substantial right, and is appealable. Chamberlain v. Choles, 35 N. Y., 477; S. C., 3 Abb. Pr. N. S. 118.

The provision giving a review of orders "involving the merits," does not include orders resting in the discretion of the court,—such as denying

Tauton v. Groh.

The action was brought by the appellant to foreclose a mortgage made by the respondents to one Louisa T. Milman for the sum of twelve hundred dollars. The plaintiff and appellant in her action claimed

a new trial sought on the ground of surprise. Selden v. Delaware & Hudson Canal Co., 29 N. Y., 634.

An order striking out new matter from an answer, as not constituting a defense, involves the merits, within this provision. Rapalee v. Stewart, 27 N. Y., 310.

An order determining which party is entitled to costs, where costs are a matter of strict legal right, involves the merits, and may be reviewed on appeal from the judgment. Hooe v. Sanborn, 36 N. Y., 93; S. C., 3 Abb. Pr. N. S., 189. But compare McClure v. Supervisors, 4 Abb. Pr. N. S., 202.

An extra allowance of costs does not involve the merits. McGregor v. McGregor, 32 N. Y., 479; Clarke v. City of Rochester, 34 Id., 355. But a refusal of the supreme court to entertain an appeal from an order granting such allowance, does involve the merits. People v. New York Central R. R. Co., 29 N. Y., 418.

So, notwithstanding the provision of subdivision 2, giving an appeal when an order grants or refuses a new trial, an order granting a new trial for newly-discovered evidence, surprise, misconduct of jurors, or the like, rests in the discretion of the court, and is not reviewed in the court of appeals. Lawrence v. Ely, 38 N. Y., 42, and cases cited; and 34 N. Y., 388. And an order granting a new trial on the ground that the verdict was against evidence, or against the weight of evidence, will not be reviewed under this clause. Young v. Davis, 30 N. Y., 134. But it should in such case clearly appear by the record that the order was based upon questions of fact; otherwise, it must be assumed that it was granted for errors in law at the trial; and if the court find no such errors, the order must be reversed. River Bank v. Kennedy, 4 Keyes, 279.

Where the appeal is from an order refusing a new trial, questions of law only can arise on the hearing of the appeal. Ib.

The rule that an order granting or refusing a new trial is appealable to the court of appeals, does not apply to the case of a trial of special issues, which may or may not embrace the merits of the cause. The award of such issues rests in discretion. Clark v. Brooks, 2 Abb. Pr. N. S., 385.

On the other hand, it is held that under the provision of subdivision 2,-giving an appeal from an order affecting a substantial right, and preventing a judgment,—an order in an action against bail, allowing them to surrender their principal and be discharged, is appealable, even if in the discretion of the court; for it affects a substantial right, determines the