Joshua Velleman, Plaintiff, v. William F. Rohrig et al., Defendants; Samuel Strasbourger, Respondent, v. Monona Company et al., Appellants

Joshua Velleman, Plaintiff, v. William F. Rohrig et al., Defendants. Samuel Strasbourger, Respondent, v. Monona Company et al., Appellants. Appeal — Order Distributing Surplus Moneys. An order for distribution of surplus moneys in foreclosure is made in a special proceeding, and an appeal therefrom may be taken to the Court of Appeals without permission. Velleman v. Bohrig, 137 App. Div. 693, affirmed. (Argued November 10, 1908; decided November 24, 1908.) Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 24, 1908, which affirmed an order of Special Term directing distribution of snrplus moneys arising upon a mortgage foreclosure. Frank M. Avery for appellants. The order is appealable to this court since a surplus proceeding is a special proceeding. (1 Fiero on Spec. Proc. [2d ed.] 15, 457; Wiltsie on Mortgage Foreclosures, § 753; Nicholls N. Y. Practice, 16; M. L. Ins. Co. v. Anthony, 33 Wkly. Dig. 427; Elwell v. Robbins, 43 How. Pr. 108; Matter of Gibbs, 58 How. Pr. 502; U. D. S. Inst. v. Osley, 4 Hun, 657; Bergen v. Carman, 79 N. Y. 146; Burchell v. Osborne, 119 N. Y. 486, 491; Quackenbush v. O’Hare, 129 N. Y. 485; Hyman v. Hauff, 138 N. Y. 48.). Austen G. Fox and Max L. Schallek for respondent. The order is not appealable to this court, and the appeal herein should be dismissed. It is not an appeal from an order determining a special proceeding, but from an order in an action, and this court has no jurisdiction- to hear the same. (Van Arsdale v. King, 155 N. Y. 325; Fowler v. Fowler,. 147 N. Y. 673; People v. A. L. & T. Co., 150 N. Y. 117; McDermott v. Hennessy, 9 Hun, 59; G. S. Bank v. Sharer, 25 Hun, 409; Hammond v. N. L. Assn., 168 N. Y. 263; N. Y. S. Co. v. S. G. & E. L. Co., 156 N. Y. 645; Fliess v. Buckley, 90 N. Y. 286; M. L. Ins. Co. v. Bowen, 47 Barb. 618; Matter of Gibbs, 58 How. Pr. 502.) [MAJORITY — Per Curiam.] Per Curiam. Hpon the argument it was insisted by the learned counsel for the respondent that no appeal could be taken to this court, without permission, -from an order for the distribution of surplus moneys arising upon the foreclosure of a mortgage by action. Such appeals have been before us since the adoption of the revised Constitution, and we have uniformly held that we had jurisdiction to decide them, because such, orders, even if entitled in the action, are not made therein, but in a special proceeding commenced after the action is ended by a final judgment which effects every object that the action was brought to accomplish. (Bushwick Savings Bank v. Traum, 158 N. Y. 668; 26 App. Div. 532.) As it seems that we have made no public announcement of the rule, for in the case cited we affirmed on the opinion below and in other cases without an opinion, we now announce it for the information of the profession. We think that the action of the courts below in the proceeding now before us was in accordance with law for the reasons stated in the prevailing opinion of the Appellate Division, and we, therefore, affirm the order appealed from, with costs. Cullen, Ch. J., Gray, Haight, Yann, Willard Bartlett, Hiscock and Chase, JJ., concur. Order affirmed.