The People ex rel. William Lee, Respondent, v. James Lynch, Sheriff, etc., Appellant

The People ex rel. William Lee, Respondent, v. James Lynch, Sheriff, etc., Appellant. This was a motion to dismiss appeal. James Lynch, as sheriff of the city and county of New York, sold certain premises upon execution against Thomas Butler. The relators, Lee and McAllister, both claimed to redeem as judgment creditors of Butler, and demanded a deed of the premises. The sheriff refused to determine the conflicting claims or to convey to either without the order of the court. The relator thereupon applied to the Supreme Court for a peremptory mandamus to compel the sheriff to execute a deed to him. The motion was opposed by the sheriff upon affidavits, among others, of McAllister, setting up his claim. The motion was granted. The sheriff and McAllister both appealed to the General Term, and, from the order of affirmance there, to this court. This motion was to dismiss the appeal of McAllister, on the ground that he was not a party to the record, and therefore had no right to appeal. ' Held, that said appeal was unauthorized and unnecessary, and that the question was not affected by the fact that McAllister was recognized as appellant, without objection, at the General Term, as the General Term simply affirmed the Special Term order, which was not against McAllister; appeal, therefore, dismissed. [MAJORITY — Earl, C.,] Earl, C., reads for dismissal of appeal. All concur. Appeal dismissed.