
    Albert D. Wilbor, Treasurer, etc., Respondent, v. Henry S. Danolds, Appellant.
    (Argued January 19, 1875;
    decided January 26, 1875.)
    Where a party in possession of mortgaged premises, sold upon foreclosure sale, resists the claim of the purchaser to immediate possession upon some claim of right, independent of and consistent with the judgment, the determination of the question whether a writ of assistance will be issued, or the party in possession allowed to retain possession and the purchaser be driven to his action, does not affect a substantial right; it is addressed to the discretion of the court having jurisdiction to issue the process, and its decision cannot be reviewed here. (Grover and Rafallo, JJ., dissenting.)
    This was an appeal by defendant Danolds from an order of General Term which granted an application on the part of said Danolds to set aside a writ of assistance.
    This was an action for the foreclosure of a mortgage upon premises of which Danolds was in possession.
    A judgment of foreclosure and sale was perfected, and upon sale the premises were purchased by Sylvester W. Kneeland, who presented his deed and demanded possession, and upon proof thereof and of a refusal on the part of Danolds to surrender possession, applied for and obtained an ex párete order-granting a writ of assistance, which was executed by the sheriff and Kneeland put in possession. Danolds founded his application to set aside the writ, upon affidavits showing that Kneeland purchased under an “ agreement, arrangement or understanding ” with him that he -would purchase and take a deed for the benefit of Danolds, and that relying thereon he made no other arrangements for the payment of a judgment or the protection of his interests. Kneeland presented opposing affidavits denying the arrangement and disputing the material statements in the moving papers. Held, that Knee-land, upon the production of his deed, was presumptively entitled to possession, and upon demand therefor and refusal, the writ of assistance was the ordinary and usual process of the court (Valentine v. Teller, Hopk., 1422: Frelinghuysen v. Colden, 4 Paige, 204); and that whether it should be granted or withheld, under the circumstances, was iu the discretion of the court below.
    The following is an extract from the opinion :
    “Neither the application for, and the granting of, the writ of assistance, or the application to set aside the writ, necessarily involved a substantial right. Whether in a particular case, as between a purchaser and a party to the action and bound by the judgment, the former shall have the aid of the court in obtaining the possession of the purchased premises rests very much in the discretion of the court of original jurisdiction. Whether the purchaser shall have the benefit of the summary proceedings, or resort to some other remedy to secure the fruits of his purchase, and whether the party resisting the claim of the purchaser to immediate possession, upon some claim of right independent of the. judgment, and consistent with it, shall be permitted to retain the possession and drive the purchaser to his action, or shall yield possession and himself seek any relief to which he may be entitled, by proper action, are questions addressed to the discretion of the court having jurisdiction to give the process, and are not the subject of review here. A decision either way can determine no substantial right. The right of one denied his summary remedy, or of the other expelled from the premises by the • possessory process, is not prejudiced; they have their respective actions for relief. The possession of property pending a litigation, and the settlement of a controversy as to the title, is not the legal right of either of the contestants.”
    
      George Bullard for the appellant.
    
      W. F. Cogswell for the- respondent.
   Allen, J.,

reads for dismissal of appeal; Folger, Andrews and Miller, JJ., concur.

For affirmance, Grover and Rapadlo, JJ.; Church, Oh. J., not sitting.

Appeal dismissed.  