34 N.Y.S. 786 88 Hun. 503

(88 Hun, 503.)


(Supreme Court, General Term, Third Department.

July 6, 1895.)


An order appointing a referee can be reviewed only by a separate appeal therefrom, taken without submitting to a hearing on the merits.

Appeal from Sullivan county court.

Action by Abner Mills against Etta Stewart to foreclose a mortgage. From an order granting a reference,, plaintiff appeals.


Argued before PUTNAM, P. J., and HERRICK and FURS-MAN, JJ.

John A. Thompson, for appellant.

George H. Carpenter, for respondent Scott.


The order appointing the referee cannot be reviewed upon this appeal. It is not an intermediate order, nor is this an appeal from a final judgment, within the meaning of section 1316 of the Code of Civil Procedure. Fox v. Matthiessen, 84 Hun, 396, 32 N. Y. Supp. 356. The only way to review such an order is by a separate appeal. The appellant cannot submit to an order, and proceed to a hearing upon the merits, and take his chances of a favorable decision, and then, in the event of its being adverse to him, attack the regularity of the order, or the authority of the court to make it.

The question then comes upon the merits of the decision of the referee so appointed. The plaintiff’s attorney had the right to act for him in all matters relating to the foreclosure suit, until final judgment, at least. The proceedings here had not gone to that length; Only an interlocutory decree had been entered. The agreement between the plaintiff’s attorney and Scott was, in effect, nothing more than the law would award to Scott upon payment of the mortgage. Twombly v. Cassidy, 82 N. Y. 157; Arnold v. Green, 116 N. Y. 566-572, 23 N. E. 1. The amount paid to Scott is undisputed. The person to whom it was paid being the plaintiff’s attorney, and in the very proceeding in which it was paid, the amount thereof should be credited on the interlocutory judgment. The. order should therefore be affirmed, with costs and disbursements. All concur.

Mills v. Stewart
34 N.Y.S. 786 88 Hun. 503

Case Details

Mills v. Stewart
Decision Date
Jul 6, 1895

34 N.Y.S. 786

88 Hun. 503

New York



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