
    Mutual Life Ins, Company of New York, Resp’t, v. Henry C. Anthony, Impleaded with National Bank and Loan Co., App’lts.
    
      (Court of Appeals,
    
    
      Filed March 8, 1887.)
    
    Mortgage foreclosure—Surplus proceeding—Appeal.
    An appeal cannot be had from an order of the general term setting aside the report of a referee appointed to take proofs in a surplus proceeding and ordering a new hearing to he taken before another referee
    
      
      John Lansing, for app’lt; Elon B. Brown, for resp’t.
   Per Curiam.

This action was commenced to foreclose a mortgage, and it proceeded to judgment and sale thereunder. The sale produced a surplus, after satisfying the mortgage and several undisputed hens upon the land. The defendants, Henry C. Anthony and the National Bank and Loan Company, as judgment creditors of the mortgagor, presented claims to this surplus, each claiming priority over the other. The court at special term appointed a referee to take proofs and determine as to the claims to the surplus; and he, after hearing the claimants, made a report, in which he found that the National Bank and Loan Company was entitled to the surplus. This report was confirmed by the special term, and Henry C. Anthony, the other claimant, appealed from the order of the special term to the general term, where that order was reversed and set aside, and a new hearing was ordered before another referee, to be appointed by the special term, with ten dollars costs and disbursements, to be paid by the National Bank and Loan Company to Henry 0. Anthony. From this order of the general term the National Bank and Loan Company has brought this appeal.

We are of opinion that the appeal to this court is unauthorized, and should be dismissed. If the inquiry into the right to the surplus be regarded as a special proceeding, then the order of the general term is not final, and hence not appealable to this court. Code, § 190, subd. 3. If the inquiry is to be regarded as one made for the information of the court under section 1015 of the Code, then, even if the order of the general term affected a substantial right, it is not a final order, and, therefore, not appealable to this court. If the reference was ordered under that section to obtain information for the court, then if the court was not satisfied with the investigation and report made by the referee, it could, in the exercise of its discretion, set aside the report and vacate the order of reference, and order a further hearing before another referee; and in this view its order was discretionary, and not appealable to this court.

Under the order of the general term a new referee should be appointed, and a new hearing had before him, and if either party shall then be dissatisfied with his report, or any final order made by the supreme court thereon, an appeal may be brought to this court.

The appeal should be dismissed, with costs.

All concur, except Peckham, J., not sitting.  