
    George G. Dewsnap, Respondent, v. Moses Matthews and Moses Valenstein, Appellants. Irving Bachrach and Isaac Schmeidler, Appellants.
    First Department,
    April 19, 1907.
    Practice — order resettled to sboxv moving parties.
    When a motion is made to vacate an order appointing a receiver in an action of foreclosure and asking that the moving parties he brought in to defend, the order denying the application should state that the motion was made on behalf of the moving parties, and should he resettled to show that fact.
    
      Appeal by the defendants, Moses Matthews and another, and by Irving Bachvach and another, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 29th day of January, 19.07, denying tlie appellants’ motion to resettle a prior order so as to show that the motion which it denied was made on behalf of the defendants Matthews and Yalensteiu, and also oh behalf of Irving Bachracli and Isaac Selnneidler.
    
      Paul Gross, attorney [Herman Kahn on the brief], for the appellants.
    
      Alfred T. Davison, for the respondent.
   Ingraham, J.:

This action .was to foreclose a mortgage. Before the defendants appeared the plaintiff obtained an ex parte order appointing a receiver of the mortgaged premises.

On the 24th of December, 1906, an order was obtained requiring the plaintiff to show cause- why the order appointing the receiver should not be vacated and why Bachracli and Selnneidler should not be made parties defendant and a supplemental summons issued, and why the defendants and Bachracli and Schmeidler. should not have such other and further relief as to the court might seem just and proper in the circumstances.

.The affidavit upon which the motion was made was that of Bach- ■ rach, from which it appeared that the property had been conveyed by the defendants- and mortgagors to Bachracli and Selnneidler and' the deed recorded before the action was commenced and notice of tlm pendency of the action filed. -

It is quite evident from the order to show cause and the affidavit ■ upon which the motion was made that the owners of the property were the moving parties and that they asked to be made parties to the action to protect the property of which they were the owners. The affidavit of Bachracli expressly states that he had fairly stated the case to Paul Gross, his. attorney,, and that the deponent had a good and substantial defense upon the merits to the cause of action set forth in the complaint; that he desires that he and Schnneidler be made parties to the action and that they-be given an opportunity to defend the action; Wherefore deponent prays on behalf of himself and said Isaac Schmeidler that an order be made herein directing that deponent and said Isaac Schmeidler be made parties defendant herein.”

The only answer to this is that the representative of the attorney who made the motion stated to the court that he appeared for the defendants. Where a fact that the moving party asks to have recited in an order of Special Term appears upon the record, the order should recite it and when an application therefor is denied a substantial right is affected which justifies an appeal to this court.

The order appealed from should he reversed and the case remitted to the Special Term to resettle the order as requested, with ten dollars costs and disbursements.

Patterson, P. J., Clarke, Houghton and Lambert, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and case remitted to Special Term as stated in opinion. Settle order on notice.  