
    TAUTON against GROH.
    
      Court of Appeals,
    
    
      September Term, 1869.
    Appealable Order.—Discretion not Reviewable. —Interpleader.—Foreclosure.
    An order made under section 122 of the Code of Procedure,—which provides that in an action upon a contract, or for specific real or personal property, a defendant may apply on affidavit, to have a third person, who demands the same debt or property, substituted in his place, on his paying or depositing the debt or property, &c.,—is discretionary; and when made in a case within the provisions of the section, the court of appeals will not review the exercise of their discretion by the court below.
      Such an order may properly be made in an action to foreclose a mortgage. The provision is for the protection of a defendant, and it is no objection to granting the order that the substitution will produce litigatiom between a mother and daughter.
    Appeal from an order.
    
      This action was "brought "by Elizabeth A. Tauton, plaintiff and appellant, as executrix of Jesse Tauton, deceased, against Jacob Gfroh and others, defendants and respondents, for the foreclosure of a mortgage ; and it now came before the court of appeals on an appeal from an order made by the general term of the supreme court, in the first judicial district, modifying but essentially affirming an order made by the special term.
    
      The action was brought by the appellant to foreclose a mortgage made by the respondents to one Louisa T. Milman for the sum of twelve hundred dollars. The plaintiff and appellant in her action claimed that she was the executrix of one Jesse Tauton, deceased, who had in his lifetime purchased the mortgage from the said Louisa for a valuable consideration. The appellant claimed that Louisa had assigned the mortgage to her father (the deceased), and that as his personal .representative she was entitled to collect it. Louisa claimed that she was the owner of the mortgage, and had never made any assignment of it to any one, equitable or otherwise, and notified the defendants, the respondents, not to pay it.
    The respondents wanted to pay their mortgage to the right party; and under and pursuant to section 123 of the Code of Procedure, they moved at special term for leave to pay the money into court, and be discharged from any liability therefor, and that the said Louisa be substituted in their place and stead as a party defendant. The statements of the different affidavits appear in the opinion.
    The court at special term (Cabdozo, J.) made an order, that on payment by the. respondents, Jacob Gfrob, &o., to the clerk of the city and county of New York, of the amount claimed in the summons and complaint, principal and interest, less ten dollars, costs of the motion, the said Louisa T. Milman be substituted as a party defendant in their place and stead, and that the respondents he discharged from liability to either party ; and that Louisa T. Milman, within ten days from the payment of said money into court, execute and deliver a satisfaction of said mortgage, duly acknowledged, to the respondents ; and it was therein further ordered, that if the said Louisa did not appear and defend said action within twenty days thereafter, the appellant should be at liberty to apply for an order that said money so deposited be paid over to her.
    Ho written assignment by Louisa T. Milman of the said mortgage appears to have been executed or recorded.
    On appeal, the general term modified the .order, by directing the respondents, as a condition of the substitution, to pay to the appellant’s-attorneys the costs of the action up to the time of tlie motion,, but in other respects affirmed the original order.
    From this order of the general term appeal was taken by Mrs. Tauton to the court of appeals.
    A motion to dismiss the appeal was made, in the court of appeals, on the ground that the order was not appealable"; and was denied.
    It appeared below, that the motion had been made after the service of the summons and complaint in the action, and before the time to answer had expired.
    The appellant objected, both at special and at general term, that Louisa T. Milman’s affidavit, setting forth her right to the money due on the mortgage in question, was not served on the appellant’s attorney.
    
      A. J. Parker, for the plaintiff, appellant.
    I. Affidavits which have not been served cannot be used to support a motion (Rule 49; 4 Abb. N. Y. Dig., 89, 90.
    II. The motion was premature. It is controlled by the practice in the old court of chancery (Washington Life Ins. Co. v. Lawrence, 28 How. Pr., 435).
    III. Ho such order as the one appealed from was asked for in the moving papers. It is the duty of the prevailing party to see that the order confoims to the decision (Savage v. Relyea, 3 How. Pr., 276; S. C., 1 Code R., Willard, J.). No notice of motion was served upon the attorney for the plaintiff, as is recited in the order. The defendants cannot have more than what they ask for in the order to show cause. The particular grounds of a motion should appear plainly, either by notice of motion or the affidavits" (Ellis v. Jones, 9 How. Pr., 296, Gridley, J.; Bowman v. Sheldon, 5 Sandf., 660, Duer, J.; Bailey v. Lane, 13 Abb. Pr., 354, Gen. Term, 1st Dist.). In the case of Mann v. Brooks, 7 How. Pr., 457, 458, this court says: “ Relief has sometimes been granted on a notice as general as this, but I am inclined to believe that it would tend to prevent surprise, if the court would not listen to a prayer until the petitioner has discovered, and is able to give notice of, what he wants” (Cady, J.).
    IY. Neither, section 118 nor 122 of the Code is applicable to. a case like this. They apply only to some actions on contract, and to those for the recovery of specific real property or specific personal property. This is an action for relief, and not such an one as is referred to in those sections. The remedy of Louisa T. Milman (the assignor), if any, is to sue the estate for the bond and mortgage, or money represented by them, not by giving verbal notice to the defendants not to pay the money- to the plaintiff (see Code, § 129; Wilson v. Duncan, 11 Abb. Pr., 3, Superior Ct., Gen. T.); Kelsey v. Murray, 18 Abb. Pr., 294; S. C., 28 How. Pr., 243, Ingraham, J.; United States Trust Co. v. Wiley, 41 Barb., 467, Gen. T., 1st Dist.; Judd v. Young, 7 How. Pr., 79, Shankland, J.; Tallman v. Hollister, 9 How. Pr., 508, Strong, J.; Dayton v. Wilkes, 5 Bosw., 655, Bosworth, J:; Hornby v. Gordon, 9 Bosw., 656, Monell, J.; Trigg v. Hitz, 17 Abb. Pr., 436, Gen. T., 1st Dist.).
    Y. The court will not, in an action like this, allow new parties (defendants) to be substituted against the will of the plaintiff. The assignor having parted with her interest, her presence is no more necessary to the determination of the action than is that of a former owner of the property. She cannot satisfy the mortgage, because she has no right to receive the money (Sawyer v. Chambers, 11 Abb. Pr., 110, Ingraham, J.); Freeman v. Newton, 3 E. E. Smith, 250, Glen. T.).
    VI. The affidavits of the moving party are insufficient, they should show: 1. That the defendants have served notice in writing upon this claimant. 2. That she has made her claim of them in writing. 3. Should admit or show a right in two or more claimants, and who they are, and what their claims are. 4. Should state that time for answering has expired. 5. Should state the defendants are quite indifferent as to the result. 6. That the defendants claim no beneficial interest in the subject. 7. That they have not by'their own acts placed themselves in a position to be sued. 8. Should state on what the claims of the claimant rest; or, 9. That the defendants are ignorant of them; or, 10. That the defendants do not know to whom they can safely pay the amount claimed. 11. Must show that the claimant is ready and willing to be substituted as the defendant, and must state her pecuniary responsibility so as to.be able to pay costs (2 Barb. Ch., 120, 121, 573; Wilson v. Duncan, 11 Abb. Pr., 7, Superior Ct. Glen. T.; Sherman v. Partridge, 1 Abb. Pr., 256; S. C., 11 How. Pr., 154, Duer, J.; Vosburgh v. Huntington, 15 Abb. Pr., 254, Mullen, J.; Atkinson v. Manks, 1 Cow., 691, 703; 2 Whitt. Pr., 3 ed., 16, 17, and cases cited; Lund v. Savings Bank, 20 How. Pr., 461, Hogeboom, J.; affirmed, 37 Barb., 129; S. C., 23 How. Pr., 258, Glen. T., 1st Dist.; Marvin v. Ellwood, 11 Paige, 365, 374; Fletcher v. Troy Savings Bank, 14 How. Pr., 383; Lund v. Savings Bank, 37 Barb., 129; S. C., 23 How. Pr., 258). Where the controversy arises under a written instrument its exact provisions should be given by the moving party (1 Whitt. Pr., 3 ed., 952, cases cited).
    VII. Here was a valid and equitable assignment- of the bond and mortgage by'the mortgagee to the testator, though not in writing; and therefore Louisa T. Milman has no interest in the bond and mortgage, and should not be made a party (Green v. Hart, 1 Johns., 580; Johnson v. Hart, 3 Johns. Cas., 322; Jackson v. Willard, 4 Johns., 42; Runyon v. Mersereau, 11 Id., 534; Dawson v. Coles, 16 Id., 54; Prescott v. Hull, 17 Id., 292; Briggs v. Dorr, 19 Id., 96; Ford v. Stuart, 19 Id., 344; Gould v. Ellery, 39 Barb., 163, Gen. T., 1st Dist., opinion by Ingraham, J.; Voorhies' Code, 9 ed., 112; Hastings v. McKinley, 1 E. D. Smith, 277, Gen. T.).
    VIII. The’ testator having purchased this bond and mortgage of the mortgagee, and paid the full value for them, and she having delivered them to him who owned a,nd held them at the time of his death, the plaintiff, on producing them in court, has a right to recover upon them against the present defendants, without joining or substituting others (James v. Chalmers, 6 N. Y. [2 Seld.], 209; Gould v. Ellery, 39 Barb., 163, Gen. T., 1st Dist., opinion by Ingraham, J.; Mottram v. Mills, 1 Sandf., 37; Freeman v. Newton, 3 E. D. Smith, 250, Gen. T.).
    IX. The order appealed from should be reversed with costs and disbursements in the court below and of both appeals to be paid either by the respondents or the mortgagee..
    
      Dennis McMahon, for the defendants, respondents.
    —I. The order of the special term in question was entirely discretionary, and cannot be impeached here., Even if it could ; yet,
    II. The plaintiff’s answer to the motion, as well as the answer of Louisa T. Milman, showed the necessity of the interpleader to protect the defendants. If, upon the hearing, the question between the defendants is ripe for decision, the court should decide it; if not, it should direct an issue (Will. Eq. Jur., 322).
    III. The order to show cause prayed for further order as to the court might seem just. The whole of the papers of both the plaintiffs and defendants, as well as the affidavit of Louisa T. Milman, were made the basis of the order finally made, and these make one of the clearest cases for such an order.
    IV. On the whole case it appeared that the defendants held the funds in the suit for the true owner, and only desired that the question should be determined between the claimants, without costs or vexation to them, and that they were ready to pay the amount into court,, which they did {Code, § 122).
    V. The- order was made at the proper stage of the action, and should be affirmed.
    
      
       The cases do not establish any very clear test as to what orders are to be deemed discretionary, and therefore not reviewable except in case of gross abuse of discretion. The most important recent decision on the point, is that of King v. Platt, 3 Abb. Pr. N. S., 174, where it was held that if the application involved matter of strict legal right, it was in so fttr not discretionary; but in the nature of things, the distinction is sometimes difficult.
      The following are the decisions of the court of appeals, which illustrate the question.
      The general principle is that discretionary orders are not appealable, unless the power is shown to have been arbitrarily exercised. Forrest v. Forrest, 25 N. Y., 501. But orders involving matter of law and strict right are. Tracy v. First National Bank, 37 N. Y., 523, and cases cited; and see Abb. N. Y. Dig., tit. Appeal.
      A refusal to exercise discretion on the ground of want of power, is appealable. Russell v. Conn, 20 N. Y., 81.
      The exercise of the discretion given by section 317, to require security for costs of trustees, &c., is not reviewable in the court of appeals. Briggs v. Vandenburgh, 22 N. Y., 467.
      So as to that granted by section 360, to allow a new trial in justice’s cases. Wavel v. Wiles, 24 N. Y., 635.
      So as to that granted by Laws of 1843, p. 8, ch. 9, as to relieving a person from commitment for contempt in case of inability to pay fine, &c. People v. Delvecchio, 18 N. Y., 352.
      
        Denial of a motion to set aside one of two judgments for the same cause, entered by mistake, the other having been meanwhile satisfied, is a matter of practice not reviewable. Pendleton v. Weed, 17 N. Y., 72.
      The court will not review the denial or dissolution of a temporary injunction (Van Dewater v. Kelsey, 1 N. Y. [1 Comst.], 533, 534), unless the order was on the ground that plaintiffs could ultimately have no relief. In order to sustain such an appeal, tlie papers should show that the motion was denied on that ground. Hasbrook v. Kingston Board of Health, 3 Keyes, 380; 5 Abb. Pr. N. S., 399.
      An order denying a motion to vacate an attachment against property, where the motion was made on the ground that, as matter of law and strict right, the attachment was illegal, is appealable. Tracy v. First National Bank of Selma, 37 N. Y., 523. But the contrary seems to have been held of an order refusing to vacate a judgment, in Foote v. Lathrop, 41 Id., 358.
      Under the provision of section 11 of the Code,—allowing an appeal from an order affecting a substantial right,—an order which peremptorily and finally charges a party with the payment of a sum of money, great or small, which he ought not to pay, affects his rights, not in a matter of form, but of substance. Leslie v. Leslie, 6 Abb. Pr. N. S., 193 (N. Y. Com. Pl.); People v. New York Central R. R. Co., 29 N. Y., 418.
      Orders respecting the re-adjustment or re-taxation of costs, are not reviewed by the court of appeals. People v. Lewis, 28 How. Pr. 470.
      Nor is leave to discontinue an equitable action without costs. Staiger v. Schultz, 3 Abb. Pr. N. S., 377; De Barante v. Deyermand, 41 N. Y., 355.
      An order denying a motion that a receiver, plaintiff, pay costs to which a defendant has become entitled, is not discretionary within this rule. Columbian Ins. Co. v. Stevens, 37 N. Y., 536; S. C., 4 Abb. Pr. N. S., 122.
      An order punishing a party as for contempt affects a substantial right. Sudlow v. Knox, 7 Abb. Pr. N. S., 411. An order refusing to punish does not. Batterman v. Finn, 40 N. Y., 340.
      An order before judgment, for punishment for contempt,- unless certain acts be done, is one made in the action; but is not appealable, because not final. New York, &c. R. R. Co. v. Ketchum, 3 Keyes, 24.
      A denial of a motion, for an order which would have been nugatory if granted, cannot be regarded as affecting a substantial right. Union Bank v. Mott, 27 N. Y., 633.
      An order setting aside a sale in foreclosure, and ordering a reference to ascertain the equities of the parties, is not appealable to the court of appeals. Dows v. Congdon, 28 N. Y., 122.
      Nor is an order under the act of 1862, referring an action by the receiver of a mutual insurance company. Sands v. Harvey, 19 Abb. Pr. 248.
      . An order dismissing an appeal from the special term to the general term, for neglect to give security required by an order for a stay of proceedings, is not a matter of discretion, but of strict legal right; and as the effect is to prevent a judgment from which an appeal to the court of appeals might be taken, it is appealable. Genter v. Fields, 1 Keyes, 483.
      The subdivision of section 11,—authorizing appeals from final orders, and in special proceedings, or after judgment, &c.,—is held not to give an appeal from an order denying a receiver’s application for leave to sue; for such an application is addressed to the discretion of the court, and the order is. not within this subdivision.' The case is not altered by a stipulation that the matter shall be determined as if on demurrer. Matter of Reeve, 34 N. Y., 359.
      Nor does this subdivision give an appeal from orders refusing to set aside defaults; for these are discretionary, and not appealable. Fort v. Bard, 1 N. Y. [1 Comst.], 43; and see 426. This is so, whatever may be the ground on which the order was made. Schermerhorn v. Mohawk Bank, 1 Id., 125.
      Nor does it give an appeal from orders denying motions to set aside verdict for surprise, &c., which rest in discretion. Selden v. Delaware & Hudson Canal Co., 29 N. Y., 634.
      Nor from orders refusing to set aside a judgment for irregularity. Stark v. Dinehart, 40 N. Y., 342; Sherman v. Felt, 2 N. Y. [2 Comst.], 186.
      Nor from orders allowing and adjusting costs under the statute, for such are not final orders affecting substantial right. McClure v. Supervisors of Niagara County, 4 Abb. Pr. N. S., 202.
      Nor orders granting or refusing an extra allowance of costs in an action. Clarke v. City of Rochester, 34 N. Y., 355; McGregor v. McGregor, 32 Id., 479.
      Nor orders striking out costs for irregularity. Thompson v. Bullock, 16 How. Pr., 213.
      
        Nor orders denying retaxation of costs and motion to correct judgment, nor an order dismissing an Appeal from an order of the special term denying a motion to resettle a case. Hoe v. Sanborn, 36 N. Y., 93; S. C., 3 Abb. Pr. N. S., 189.
      The adjustment of alimony in divorce is discretionary, and exceptions to the report of a referee appointed to aid the court in determining it, or to his admission or rejection of evidence, are not reviewable in the court of appeals. Forrest v. Forrest, 25 N. Y., 501; and see 4 How. Pr., 139.
      The subdivision does not give an appeal from an order denying leave to appeal after the statute period has expired. Salles v. Butler, 27 N. Y., 638.
      But it does include an order either granting or denying an application to set aside a judicial sale and.for a resale on terms, for that closes finally a summary application, and is a “ final order”. Buffalo Savings Bank v. Newton, 23 N. Y., 160; King v. Platt, 3 Abb. Pr. N. S., 174; S. C., 34 How. Pr., 26. And if grounded on fraud, it is matter of strict legal right, and may be reviewed. King v. Platt, above. But if not urged as matter of legal right, it is discretionary, and will not be reviewed on appeal. Buffalo Savings Bank v. Newton, above; Dows v. Congdon, 28 N. Y., 122, and cases cited.
      It includes an order vacating an attachment on grounds of legal right, after judgment recovered in the action. Wright v. Rowland, 4 Keyes, 165; S. C., 36 How. Pr., 248.
      A legal right to issue execution is a substantial right, and when leave is necessary, an order denying leave, although upon thé ground of alleged equitable offsets, is appealable. Betts v. Garr, 26 N. Y., 383.
      Otherwise of an order refusing to set aside an execution issued after five years without leave; for this does not affect a substantia! right, but is matter of irregularity and favor. Bank of Genesee v. Spencer, 18 N. Y., 150. So is an order opening a judgment by default, suffered by mistake, in foreclosure. McReynolds v. Munns, 2 Keyes, 214.
      An order denying restitution to a party who has been dispossessed under a writ of assistance which has since been vacated, affects a substantial right, and is appealable. Chamberlain v. Choles, 35 N. Y., 477; S. C., 3 Abb. Pr. N. S. 118.
      The provision giving a review of orders “involving the merits," does not include orders resting in the discretion of the court,—such as denying a new trial sought on the ground of surprise. Selden v. Delaware & Hudson Canal Co., 29 N. Y., 634.
      An order striking out new matter from an answer, as not constituting a defense,.involves the merits, within this provision. Rapalee v. Stewart, 27 N. Y., 310.
      An order determining which party is entitled to costs, wnere costs are a matter of strict legal right, involves the merits, and may be reviewed on appeal from the judgment. Hooe v. Sanborn, 36 N. Y., 93; S. C., 3 Abb. Pr. N. S., 189. But compare McClure v. Supervisors, 4 Abb. Pr. N. S., 202.
      An extra allowance of costs does not involve the merits. McGregor v. McGregor, 32 N. Y., 479; Clarke v. City of Rochester, 34 Id., 355. But a refusal of the supreme court to entertain an appeal from an order granting such allowance, does involve the merits. People v. New York Central R. R. Co., 29 N. Y., 418.
      So, notwithstanding the provision of subdivision 2, giving an appeal when an order grants or refuses a new trial, an order granting a new trial for newly-discovered evidence, surprise, misconduct of jurors, or the like, rests in the discretion of the court, and is not reviewed in the court of appeals. Lawrence v. Ely, 38 N. Y., 42, and cases cited; and 34 N. Y., 388. And an order granting a new trial on the ground that the verdict was against evidence, or against the w'eight of evidence, will not be reviewed under this clause. Young v. Davis, 30 N. Y., 134. But it should in such case clearly appear by the record that the order was based upon questions of fact; otherwise, it must be assumed that it was granted for errors in law at the_ trial; and if the court find no such errors, the order must be reversed. River Bank v. Kennedy, 4 Keyes, 279.
      Where the appeal is from an order refusing a new trial, questions of law only can arise on the hearing of the appeal. Ib.
      
      The rule that an order granting or refusing a new trial is appealable to the court of appeals, does not apply to the case of a trial of special issues, which may or may not embrace the merits of the cause. The award of such issues rests in discretion. Clark v. Brooks, 2 Abb. Pr. N. S., 385.
      On the other hand, it is held that under the provision of subdivision 2,—giving an appeal from an order affecting a substantial right, and preventing a judgment,—an order in an action against bail, allowing them to surrender their principal and be discharged, is appealable, even if in the discretion of the court; for it affects a substantial right, determines the aotion, and prevents a judgment. Bank of Geneva v. Reynolds, 33 N. Y., 100.
      The removal of a cause to the United States court does not determine .the action, nor prevent a judgment, nor affect a substantial right. A substantial right relates to the merits. Illius v. New York & New Haven R. R. Co., 13 N. Y. [3 Kern.], 597.
      When the objection upon which an appeal from the special to the general term was taken, is clearly untenable, and the order appealed from was proper on the merits, the court of appeals will not review the order of the general term, upon the ground that the general term should not have dismissed the appeal. Hoe v. Sanborn, 36 N. Y., 93; S. C., 3 Abb. Pr. N. S., 189. But compare Mianny v. Blogg, 41 Id., 521.
      An order dismissing an appeal from a judgment on the affirmance or reversal of which an appeal to the court of appeals might have been taken, is an order preventing a judgment within this section, although dismissed on a question of fact or of practice. Bates v. Voorhees, 20 N. Y., 525.
      An order vacating a judgment on the ground that before its entry the cause of action ceased to exist, is an order which determines the action and-prevents a judgment, and is appealable. Edson v. Dillaye, 17 N. Y., 158.
      But an order vacating a judgment for irregularity, without further directions, even where the irregularity complained of is nullity of the service of summons, is not such. Jones v. Derby, 16 N. Y., 242.
      A reversal of orders as to the mode in which a specific performance shall be had, that leaves the action in the same condition as before the orders were made, is not appealable. Roome v. Phillips, 24 N. Y., 463.
      The foregoing decisions should, however, be read with the qualification imposed by the amendment of subdivision 4, of section 11, enacted in 1870.
      Previous to 1870, that subdivision was construed as intended merely to regulate the mode of hearing certain appeals.
      The amendment changed the form of the subdivision to correspond with (he other subdivisions, and thus gave the court of appeals jurisdiction “ to review upon appeal every actual determination hereafter made at a general term,” &c., . . . “in an order affecting a substantial right not involving any question of discretion, arising upon any interlocutory proceedings, or upon any question of practice in the action, including an order to strike out an answer, or any part of an answer, or any pleading in an aotion.” “ Such appeals,” the, subdivision adds, “ whether now pending or hereafter to be brought, may be heard as a motion, and noticed for hearing for any regular motion day of the court.”
      It will be seen by the above review that the cases are not altogether harmonious.
      Perhaps, the best test of a discretionary order is to inquire whether the appellant complains of the judgment of the court upon a question of law or fact, or merely of the exercise of the prudential powers of the court, in matters incidental to the administration of justice.
      It is to be remembered, however, that both elements are often involved in a single motion. A question of strict legal right often involves the exercise of mere discretion as to the mode or extent of relief; and a decision which is merely discretionary as to one party, may affect the strict legal right of another party. Thus, an order punishing as for contempt, an innocent person, affects his strict legal rights; but an order refusing so to punish a guilty person is discretionary, and the strict legal rights of the party injured by the contempt are not infringed thereby. Much of the confusion in the cases arises from not discriminating ^between these elements, where both are involved.
    
   By the Court.—James, J.

This order, as modified •by the general term, was both just and right. The, action was to foreclose a mortgage made by defendants to Louisa T. Milman, and claimed to be held by plaintiff as part of the assets of her trust. The execution and validity of the mortgage were not denied. It was admitted to be due, and the mortgagors did not wish to control or delay its payment. On the contrary, they had the money, and were anxious to satisfy and discharge the mortgage. But the mortgagee still claimed the mortgage as her property, and the money due upon it as due to her. She declared that she had never parted with her title .to it, and had notified the defendants of this, and forbidden them to pay it to the,plaintiff. The plaintiff had found the instrument among her testator’s effects, but there was no written assignment attached, and none could be found to verify the testator’s title.

Under this state of facts, the defendants procured the order appealed from.

The Code, § 122, provides, that “a, defendant, against whom an action is pending upon a contract, &c., may,, at any time before answer, upon affidavit that a person not a- party to the action, and without collusion with him, makes a' demand against him for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, &c.; and the court may, in its discretion, make the order.”

This order was based upon an affidavit of the defendants, entitled in the action, setting forth that said mortgagee has made demands upon them for the payment to her of the amount due on said mortgage, and has notified them not to pay said mortgage to any person but her, and claims that she is the sole and lawful owner of the said mortgage, and that said claim or demand was made without any collusion or understanding between said Louisa and defendants, or either of • them : also, upon an affidavit of their attorney, that no answer to the action had been put in, and that he knew, of his own personal knowledge, that Louisa T. Milmanhad claimed, and now claims, that said mortgage is her property, and. that no other person has any interest in the same: also, affidavits of service of notice of this application upon said Louisa T. Milman and the plaintiff’s attorney : also, the affidavit of said Louisa T. Mil-man, that said mortgage is her sole and exclusive property ; that she never assigned, or agreed to assign the same, or any interest therein, nor ever received any consideration for any assignment thereof: also, the summons and complaint; and also, upon the affidavit of the plaintiff’s attorney, in opposition, that said Louisa T. Milman did, in 'April, 1863, sell and assign to plaintiff’s testator said mortgage, and the bond accompanying the same.

These affidavits gave the special term jurisdiction in the matter of the application, and the-allowance of the order was in its discretion. It is so declared by the Code; and being discretionary, it most likely was not the subject of review. I am, therefore, of the opinion that the appeal should be dismissed.

If, however, the order is appealable, it should be affirmed. Its justice to the defendants is too transparent .to require illustration. They make no contest; •they admit the obligation,- and that it is past due, and desire to pay it. The contest is between others for the money. The instrument is not negotiable. One claimant is the payee named in the mortgage, without possession ; the other is the possessor of the mortgage, without any other evidence of title. The only matter in dispute is the ownership of the mortgage. In that the defendants have no interest. It is asserted, that sustaining this order will produce litigation and complication between mother and daughter. But that is a matter this court cannot consider. It is not an element in the case. The Code, § 122, provides for protection to a defendant; and if a case is presented showing him entitled to the benefit of its provisions, in the discretion of the' court below, this court cannot review it because it may produce complication between the several claimants of the fund.

On the merits, the order should be affirmed.

Order affirmed with costs.  