
    COURT OF APPEALS.
    Charles King and others, respondents agt. Nathan C. Platt’s Executors, appellants.
    An order made on an application to set aside & judicial sale, made under a judgment of foreclosure, on the ground of fraud, involves a question of strict legal right, and the decision thereon is not discretionary. The order can. therefore, be appealed to the cou/rt of appeals, under section 11, subdivision 3 of the Code, as a final order affecting a substantial right, made in a summary application in an action after judgment.
    The appeal from such an order can be taken within the two years prescribed by section 331 of the Code, as it is a final order, in the nature of a judgment.
    
      March Term, 1867.
    The respondents moved to dismiss the appeal- on the grounds stated in the opinion. The'motion was denied.
    John H. Reynolds, for respondents.
    
    James Emott, for appellants.
    
   Bockes, J.

The motion at sjiecial term was to set aside a judicial sale, made under a judgment of foreclosure.

The motion was denied. On appeal to the general term the order was affirmed. An appeal was then taken to this court from the order of affirmance.

The motion now is to dismiss the appeal, as I understand it, on two grounds:

First. That the order is not appealable, because not falling under any of the subdivisions of section 11; and,

Second. -Because the granting or refusing of the order was in the discretion of the court below.

I think the order comes within the purview of subdivision 3, of section 11.

The appeal is from an actual determination of the general term, and is a final order affecting a substantial right, made upon a summitry application, in an action after judgment. ' It plainly answers each of these requirements.

But it is insisted, that this is not a final order.

It denied the motion, and ended the proceeding.

Nothing further could be done in the proceeding.

It closed finally the summary application, and consequently was a final ordér, and no right remained to the party except to appeal.

So I think the order would have been equally final had the motion been granted, instead of refused.

It would, in that event, be complete and final as to the application; the judgment of the court on the merits of the application.

Whichever way decided, it was final, in the sense of a final adjudication.

A final judgment, means a judgment which concludes the parties, as regards the subject matter in controversy, in the tribunal pronouncing it, whichever way the decision may be given. It is called final, in contradistinction from interlocutory

This is the view taken by this court in Buffalo Savings Bank agt. Newton (23 N. Y. R. 160). In that case the sale was set aside, and Denio, J., says: ' “ The order1 was final, within the meaning of section 11 of the Code.” All the judges concurred.

But notwithstanding all this, if the order rests purely in the.discretion of the court, the appeal will, for that reason, be dismissed.

And this brings us to examine the cases cited by the respondents’ counsel on this motion.

In the last case cited (Buffalo Savings Bank agt. Newton, 23 N. Y. R. 160), the appeal was dismissed, Judge Denio says, notwithstanding the order fell directly within the provision of subdivision 3 of section 11, still “it rested purely in the discretion of the court to grant or refuse.”

On looking into that case, it will be seen that the motion was addressed to the favor of the court, and was not urged as a matter of legal right.

No irregularity even was suggested, but the party asked a favor, and hence the granting or refusing it was purely discretionary.

In Dows agt. Congdon (28 N. Y. R.), a resale was ordered, and also a reference was directed, to ascertain the value of the land without improvements, with a view to further action in the case. The appeal to this court was dismissed on the ground that it was not final. All the judges concurring.

Even Judge Emott, who dissented on other grounds, concurred in this. In this case Judge Weight well remarks, and notes the-true distinction now before us—that the granting- of such an order (an order setting aside a judicial sale), when it involves no question of strict legal right, is within the discretionary power, of the court below, and not appealable ; clearly, and, as I think, very justly implying that if the motion rested on facts giving a strict legal right to demand it, the order would be appealable.

In Wakeman agt. Price (3 N. Y. R. 334), the sale was set aside. It was decided that an appeal would not lie, because the sale was in all respects regular and fair, and the motion was, as the case states, addressed to the favor of the court; hence purely discretionary. The case of Hazleton agt. Wakeman (3 How. Pr. R. 457), was similar to Wakeman agt. Price, in all respects.

So it seems that the four cases on which the motion before us is based, failed to give it support, unless this case,, like those cited, was before the supreme court as a matter of pure' discretion, not involving a question of strict legal right.

This is the rule laid down by Judge Weight, in Dows agt. Congdon, and is unquestionably sound.

So in Tripp agt. Cook (26 Wend. 143), the same distinction was marked, and it was then, said in substance, that an order which gave effect merely to the will of the judge, was one resting in "pure discretion. Not so, however, when a case was made for the application of legal rules and principles of equity.

It now remains to be seen whether the case before us does involve a strict legal right; If it does, the appeal is properly taken.

The party claimed that he had been defrauded at the sale; ■ that it was unfairly and unjustly conducted, to his injury, and he alleged that the plaintiff and purchaser approached bidders and dissuaded' them from bidding; that they need not bid, fbr the plaintiff would out-bid them, and intended to bid it in, and that such persons as wanted to purchase, could buy on more advantageous terms of the 'plaintiff, and thus discouraged and prevented bidding. The motion was, therefore, grounded on fraud, and thus became a strict legal right.

If the charge of fraud should be sustained, the party was entitled to have the sale vacated, not as a matter of favor, but as a matter of right, and he could have maintained a direct action in equity to set aside the sale, instead of proceeding by motion. ■

The case of Tiernan agt. Wilson (6 J. Ch. 411), and of Cloves agt. Dickenson (5 J. Ch. 235), afterwards in the court of appeals (9 Cowen, 403), are ftdl on this point. See also Cantine agt. Clark (41 Barb. 629). So it seems that fraud in conducting a judicial sale, gives a party a right of action, which may be enforced in a suit instituted for that purpose. This proves it to be a strict legal right, and it follows that a motion to set aside a sale for fraud involves such right, and is not, therefore, discretionary.

. This appeal should not, therefore, be dismissed on the ground that the motion was addressed to the favor of the supreme court.

This view is in strict conformity with the rule stated by Judge Wright, that the granting of such an order, when it involves no question of strict legal right, is. within the discretionary power of the court below, and not appealable.

It is next urged that the appeal in the case under subdivision 3, of section 11, is controlled by section 331, which requires the appeal to be taken u within two years after the judgment shall be perfected by filing the judgment roll.”

The appeal in this case was not within the limitation above specified, unless we either regard the roll incomplete until the order granted on the motion, and also the order of affirmance at general term was attached and made part of it, or unless we regard the order appealed from as a final order in the nature of a judgment.

It was said in Bank of Genesee agt. Spencer (18 N. Y. R. 152), that this class of orders rested on the assumption that the judgment was valid, and the proceeding in such case was based upon it, which proceeding itself might' terminate in a final order in the nature of a judgment.” This, it seems to me, is a sensible construction to put on this class of orders. The proceeding is a new and irregular one, and demands an adjudication of a new question, on new facts occurring after the entry of judgment. As regards these facts, and the adjudication upon them, the final order (as Judge Pbatt says) is in the nature of a judgment. In this view the appeal is in time.

Nor can we now, on this motion pass on the merits of the application. It is true the court, at special term, held that the party failed to make a case of fraud entitling him to the relief he sought, and the general term came to the same conclusion. But the appellant insists that the supreme court was in error in that determination, and demands that it be corrected by this conrt. This question will be determined' when the appeal shall be heard on the merits. In that regard it is enough that the party made a case requiring the application of legal or equitable principles to its determination.

Motion to dismiss the appeal is denied.  