
    Van Loan v. Squires et al.
    
    
      (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    1. Abatement and Revival—Substitution of Parties—Costs.
    Where, pending an action to foreclose a mortgage, defendant, the owner of the equity of redemption, dies, and, without any steps to make her heir a party, a reference is taken, and a sale ordered and made, it is error to require the heir, who asks to be substituted as a defendant without delay, upon learning of the proceedings, to pay the whole costs incurred since the death of the ancestor, including those of the reference and sale, as a condition of permitting her to he made a party.
    2. Appeal—From Part of Order—Costs.
    Under Code Civil Proc. N. T. § 1300, allowing an appeal from an order, or “a specified part thereof, ” an appeal will lie from so much of an order as requires a party substituted as a defendant in lieu of her deceased ancestor to pay the costs of the action, though no appeal be taken from the residue thereof.
    Appeal from special term, New York county.
    Action for foreclosure of a mortgage by Bronk Van Loan against Mary J. Squires, Richard Squires, her husband, and others. Pending the action, in 1878, Mrs. Squires, the owner of the equity of redemption, and her husband, died, and no revival was had against her sole heir, Mrs. M. E. McKinley, and, without her being made a party, a report of a referee was had and confirmed, a judgment of foreclosure and sale rendered, and the sale made. In 1888, Mrs. McKinley moved to vacate the judgment, which was granted, but upon the condition that she become a party to the action, as of the date of her mother’s death, and that she pay all the costs in the action, including referee’s and auctioneer’s fees. From this condition as to payment of costs Mrs. McKinley and W. W. Sharpe, who had purchased her interest, appeal. The other facts appear in the opinion.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Joseph 0. Brown, for appellants. J. Alex. Beall, for respondents.
   Daniels, J.

The action was for the foreclosure of a mortgage upon property situated in the city of New York. It was owned by Mary J. Squires. The action was commenced in December, 1876, and it was not until August, 1886, that an order of reference was entered referring the case to a referee to compute and ascertain the amount due to plaintiff for principal and interest upon the mortgage debt; and on the 17th of the same month judgment for the foreclosure and sale of the property was entered upon the report of the referee. Mary J. Squires, the owner of the equity of redemption, died in February, 1878, and the action was at no time revived by making any person a defendant in it representing her interest. The proceedings on the reference resulting in the judgment were accordingly not only irregular, but they were without authority; for the owner of the equity of redemption is a necessary party to the action for the foreclosure of a mortgage. Hall v. Nelson, 23 Barb. 88. This decision is not in conflict with either of the authorities referred to on behalf of the respondents, for the reason that the decease of the parties in those cases took place after the judgment. At the time of the decease of Mrs. Squires, which succeeded the decease of her husband, she left her surviving, as her sole heir, Mary E. McKinley, one of the appellants, and she applied to the court for leave to become a party to the action as the owner of the equity of redemption. But she was not such owner at the time when the order to show cause was made, on the 1st of August, 1888. She did, however, own the equity of redemption in the property until the last of May, 1888, when she conveyed it to William W. Sharpe, the other of the appellants. And it appears that it was one of the conditions of the sale of the equity of redemption that the previous proceeding, including the order of reference, should be vacated and set aside, and it was under this obligation that the motion was made in her behalf to make her a party to the action, and that, by the order, was done as of the 1st of March, 1878, which would render her sale and conveyance of the property to Sharpe subject to the action. There was no loches on her part in making the application. It appears by her affidavit that she only acquired information concerning the action and the proceedings taken therein within a few weeks prior to the time of making her affidavit, on the 13th of April, 1888. Facts were set forth in the affidavit of Henry T. Brennan from which he inferred that Mrs. McKinley must have had information concerning the action during the life-time of her mother. But the inference has not been so -far supported by the facts stated as to overcome this positi ve denial in her own affidavit. And a similar answer is applicable to the affidavit of Simon Sterne, indicating a probability that Mrs. McKinley was informed of the action five months or more before the motion. The motion was therefore made with reasonable diligence after this information had been acquired by Mrs. McKinley.

To defeat the appeal, the objection has been taken that it is ineffectual, for the reason that only so much of the order as imposes terms upon Mrs. McKinley has been appealed from by the notice of appeal, and the cases of Association v. Smith, 40 N. Y. Super. Ct. 81, and Havemeyer v. Havemeyer, 44 N. Y. Super. Ct. 171, have been brought to the attention of the court in support of this objection. But they seem to have been decided without any reference to the provision contained in the Code allowing an appeal from an order to be taken from “a specified p'art thereof.” This was the law as it was contained in the Code of Procedure, amended and enacted in 1849, and made section 327, and it has since in the same form been continued in force, and will now be found as section 1300 of the Code of Civil Procedure. This section was so framed and continued as to entitle the party whose substantial rights are affected by an order to appeal from that part of it deemed to be injurious to the party appealing; and it has been the practice, notwithstanding these decisions, to sanction and consider such appeals, and the point accordingly arises whether Mrs. McKinley should have been charged with the payment of these costs and expenses as a condition to the leave given her to become a party to the foreclosure suit. At the sale Henry T. Brennan, the assignee of the bond and mortgage, became the purchaser of the property, and he probably went into possession under his purchase. Since then he appears to have parted with his interest; for on the 19th of July, 1888, he transferred and assigned his purchase and interest in the bond and mortgage4o Simon Sterne. These parties were willing to allow the proceedings to remain in the defective and incomplete condition they have been in since the decease of Mrs. Squires, the owner of the equity of redemption; and in that condition of the case Mrs. McKinley and the purchaser from her, Mr. Sharpe, would be entitled to redeem the premises from the mortgage, by paying the principal and interest remaining now unpaid upon it. But the court considered it to be its proper disposition that Mrs. McKinley should be made a party to the action as of the 1st of March, 1878, which would render a sale of the property made after this order legal and regular, vesting a good title in whoever should become the purchaser. Each party is willing to leave this part of the order in force. Keither the plaintiff nor the purchaser, nor his grantee, has in any way drawn in question the regularity or propriety of this part of.the order. But it has become a fixed and permanent part of the action, and under it Mrs. McKinley is to be brought in as a defendant. The sole controversy has been reduced to the terms. And as a matter- of equity there was no justifiable ground for charging her with the costs and expenses of the preceding unauthorized proceedings. They were of no benefit either to herself or to the property, and, if an action to redeem the mortgage should be prosecuted by her, she. could not be charged with these costs and expenses, for the reason that they were incurred without authority, and the latter part of the order, providing that they shall be repaid out of the proceeds of any subsequent sale, in no way remedies the injustice of this requirement; for, even in that event, the costs and expenses of the unauthorized proceeding would still be a charge upon her interest in the property, which it should not legally or equitably be made to bear. What was done in the action after the decease of Mrs. Squires was without jurisdiction, and a nullity, and the expenses of the proceedings could not legally be made a charge upon the interest of Mrs. McKinley in the equity of redemption. So much of the order as imposed these terms as a condition to the right of Mrs. McKinley to become a party to the suit should therefore be reversed, with the usual costs and disbursements of the appeal to the appellants to abide the event of the action. All concur.  