Emma Merges, Plaintiff, v. Mary Ringler et al., Defendants; Jacob F. Opperman, by J. Aspinwall Hodge, Jr., his Guardian ad Litem, Plaintiff and Respondent, v. Phillipine Opperman et al., Defendants; Robert J. King, Jr., Purchaser, Appellant; Mary Ringler et al., Respondents

Emma Merges, Plaintiff, v. Mary Ringler et al., Defendants. Jacob F. Opperman, by J. Aspinwall Hodge, Jr., his Guardian ad Litem, Plaintiff and Respondent, v. Phillipine Opperman et al., Defendants. Robert J. King, Jr., Purchaser, Appellant; Mary Ringler et al., Respondents. (Argued January 11, 1899; decided March 7, 1899.) Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 2, 1898, affirming an order of Special Term denying a motion by a purchaser to be relieved from his bid and purchase under decrees in an action of partition. Also, motion to dismiss the appeal from the order, upon the grounds that the appeal is frivolous and vexatious, and that the Court of Appeals has no jurisdiction to entertain it. Merges v. Ringler, 34 App. Div. 415, affirmed. J. Aspimwall Hodge, Jr., for motion. Elihu Root opposed. Elihu Root for purchaser, appellant. J. Aspinvjall Hodge, Jr., and Lorenz Zeller for respondents. [MAJORITY] Fvrst. The order is reviewable, and the motion to dismiss the appeal is denied. All concur (Gray, J., upon the sole ground that since the cases of Holme v. Stewart [155 N. Y. 695], Smith v. Secor, and Kingsland v. Fuller [157 N. Y. 402 and 507], the question can no longer be deemed to be an open one, and that the court is committed to the view that such orders are final orders in special proceedings), except Parker, Ch. J., Martin and Vann, JJ., dissenting. Second. On the merits, the order is affirmed on the opinion below, with costs. All concur (Parker, Oh. J., joining in the decision because the court has determined the order to be appealable), except Bartlett, Martin and Vann, JJ., not voting.