
    KING against PLATT.
    
      Court of Appeals;
    
    
      March, 1867.
    Appealable Obdebs.—Qbder to set asede a Judicial Sale.
    An appeal may be taken to the Court of Appeals from an order of the General Term affirming an order of the Special Term denying a motion to set aside a judicial sale made under a judgment. Such an order is final; it affects a substantial right; and it is an order made upon a summary application in an action after judgment.
    Such an order is not purely discretionary with the court below, in such a sense as to prevent it from being reviewed.
    An appeal in such a case is in time if taken within two years from the entry of the order. The order is in the nature of a judgment, within the meaning of the Code of Procedure.
    Motion to dismiss an appeal.
    The appeal was taken by the defendants from an order of the Supreme Court, made at a general term in the city of New York, on December 31st, 1864, affirming an order of the special term, made December 18th, 1863, denying a motion of the defendant to set aside a sale of certain real estate in the city of New York, and that a re-sale should be had under a judgment of the court previously rendered.
    The facts of the case are as follows: The action was brought by Charles King, Edward J. King and Sylvester Brush, against Nathan 0. Platt, to compel the specific performance by the defendant of an agreement to purchase real estate in New York. The purchase price was $75,000, and the time fixed for the performance was October 6th, I860. It resulted in a judgment in favor of the plaintiffs, which was entered on the 15tll of March, 1862.
    This judgment adjudged the balance of the purchase money unpaid, with interest, to be $78,412 60, and directed the defendant to complete his purchase within ten days, by paying the costs, &c., and $22,162 60 of the purchase money due, and execute and deliver his bond and mortgage on the premises to secure the balance ($56,250).
    It was further adjudged, that if the defendant failed to comply with the judgment within the ten days, then that the premises be sold at auction under the direction of a referee; and that out of the proceeds of the sale the referee pay costs, &c., and the amount due the plaintiffs, and deposit any surplus to abide the order of the court; and if there should be a deficiency, that the defendant pay the same, &o.
    
    No appeal was taken from this judgment. When the sale took place, the whole property brought $75,950, and was purchased by or in behalf of the plaintiffs, leaving a deficiency of about $10,000.
    The premises were conveyed to the plaintiffs by the referee, and he made and filed his report.
    On February 12th, 1863, the defendant procured an order requiring the plaintiffs to show cause why the sale made should not be vacated and set aside, and a re-sale ordered.
    • This order was obtained upon affidavits suggesting the following as grounds upon which a re-sale was moved for : ■
    1. That the sale was made on the day of a charter election*
    2. That the auctioneer, named in the notice, did not personally officiate at the commencement of the sale.
    3. That the price bid was inadequate.
    4. That the plaintiffs approached bidders at the sale, and deterred them from bidding, and prevented competition, &c.
    These allegations were met and substantially denied by affidavits on the part of the plaintiffs; and when the motion caine on to be heard at special term, an order was first made referring it to a referee, “ to take proof whether any, and if so, what inducements, communications or representations were made or held out by the plaintiffs or their agents, or in their behalf, or by the referee, to deter or prevent bidders at the sale had under the judgment in this action;” and he was directed to report proof to the court. On the coming in of the report, counsel were again heard upon the report- of the referee and the original papers, and on December 18th, 1863, the motion was denied, with costs. This order was affirmed at the general term, and from the order of affirmance the appeal of the plaintiff was taken to this court December 29,1866.
    
      John H. Reynolds for the motion.
    I. The question involved in the application to the supreme court resulting in the order appealed from, required the exercise of mere discretion, and the decision of the supreme court is final, and the order not appealable to this court. This has been several times so adjudged by this court. (Dow v. Conden, 28 N. Y., 122; Buffalo Savings Bank v. Newton, 23 N. Y, 160; Wakerman v. Price, 3 Comst., 334; Hazleton v. Wakeman, 3 How. Pr., 357.) 1. In the cases cited the order of the court below directed a re-sale, but in this case the re-sale was refused. Whether the decision be one way or the other can make no difference, as the right of appeal depends upon the character of the questions involved in the order appealed from, and not upon how they were decided. If resting in discretion, a decision either way is final. 2. In fact, it is very easy to see that there is no fixed legal right involved in the present question. It is, simply, • whether an officer of the supreme court has duly executed its process, or has abused it; and that question belongs to the court whose judgment or process is claimed to have been abused. 3. A matter resting in the discretion of a court or judge, is not such a right as can be made the subject of an appeal to this court. 4. It may be conceded that the general term could hear an appeal from an order of the special term in a case like the present, but that does not prove that an appeal lies to this court. (People v. New York Central R. R. Co., 29 N. Y, 418.)
    It. The appeal was too late, and for that reason should be dismissed. 1. The statute requires that an appeal under the subdivision 3 of section 11 of the Code must be taken within two years after “ the judgment shall have been perfected by filing the judgment roll.” (Code, §§ 11, 331.) 2. The judgment roll in the present case was filed March 15, 1862, and the appeal taken on December 29, 1866. 3. The statute seems to be plain that the appeal from an order under subdivision 3 of section 11, must be taken within two years after the judgment in the action is perfected, and however unwise this provision may be the court must give it effect.
    
      James Emott, opposed.
    I. The appeal in this cause -was taken in time. 1. The word “ judgment ” in section 331 of the Code signifies the “actual determination” made at general term ; in this case, the order appealed from, which is “ a final order in.the nature of a judgment.” (Bank of Genesee v. Spencer, 18 N. Y., 152.) It cannot signify the special term judgment in this action ; because the time to appeal can be limited only upon something from which an appeal can be taken. By the Code, it is uniformly limited upon the thing, or notice of it, appealed from. The special term judgment had been perfected more than t^vo years when the general term order was made. Thus, an appealable order might be made at a day when the time to appeal from it had expired. An absolute legal right would begin to exist when its day had passed. 2. This appeal was taken within two years after the general term order, and is in time. That such appeals have been entertained, see Wolcott v. Holcombe, 31 N. Y., 125.
    H. The order is appealable within subdivision 3 of section 11 of the Code. It is a final order, affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment. 1. The order is final. While it remains, there is no other proceeding in the action possible. Except for this appeal, the litigation is ended ; nor is there left to the appellants any remedy. 2. It affects a subj stantial right. The equity of redemption in valuable real estate is gone beyond recovery. A judgment for $10,269 67 deficiency has passed against appellants. 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, or with a greater amount than he ought to pay, affects his rights, not in a matter of form, but in substance. (People v. Central R. R., 29 N. Y, 422.) 3. It was made on a summary application for a resale after judgment, and assumes the validity of the judgment. It is settled in this court, that the order referred to in subdivision 3, is one founded upon the judgment and recognizing its vaEdity. (McGregor v. Comstock, 19 N. Y., 583 ; Selden v. D. and H. Canal Co., 29 N. Y. 637.) 4. Under circumstances clearly distinct from this case, orders in cases of judicial sales, have been held not to be appealable. (Dows v. Congdon, 28 N. Y., 122 ; Buffalo S. Bank v. Newton, 23 N. Y., 160 ; Wakeman v. Price, 3 Comst., 334; Hazleton v. Wakeman, 3 How. Pr., 457.) In aE these cases, the motion for re-sale was granted. There were further legal proceedings to be taken ; a re-sale, a report, and the proceedings thereon; the order was .not final. The respondent’s substantial right, viz.: to collect •the principal and interest of his claim, was not affected. (Colier v Whipple, 13 Wend., 228.) 5. In the last reported case in .the court of errors, an appeal was entertained from an order of the Chancellor refusing to grant a resale. (Tripp v. Cook, 26 Wend., 143.)
    III. The grounds upon which this case was presented to, and decided in the Supreme Court were not addressed to its discretion. The relief was claimed as a right, a legal remedy, from the fraud of respondents. It is when the order involves no question of strict legal right, that it is deemed within the discretionary powers of the court below, and not appealable. Dows v. Congdon, 28 N. Y., 124.) In this case this question of strict legal right is involved: Whether the respondent’s "misconduct and interference with bidders at the sale, resulting in them purchase of the property and a judgment for deficiency, was not unconscientious and oppressive, and a violation of fixed principles of equity?
    IV. The respondents’ interference with free bidding was a constructive fraud, and a violation of the settled equitable principles by which judicial sales are controlled. (See Thompson v. Davis, 13 Johns., 115; Twining v. Morrice, 2 Brown’s Ch., 331; Jackson v. Crofts, 18 Johns., 110; Collier v. Whipple, 13 Wend., 226 ; Brown v. Frost, 10 Paige, 246; American Ins. Co. v. Oakley, 9 Paige, 259; Gould v. Libby, 24 How., 440; Story Eq. Jurisp., 293; 1 Sugden V. & P., 96, § 12; Brisbane v. Adams, 3 Comst., 129.)
   By the Court.—Bockes, J.

The motion at special term was to set aside a judicial sale, made under a judgment of foreclosure.

The motion was denied. On appeal to the general term, the order was affirmed. An appeal was then taken to this court from the order of affirmance.

The motion now is to dismiss the appeal, as I understand it, on two grounds: 1. That the order is not appealable, because not falling under any of the subdivisions of section 1.1; and 2. Because the granting or refusing of the order was in the discretion of the court below.

I think the order comes within the purview of subdivision 3 of section 11.

The appeal is from an actual determination of the general term, and is a final order affecting a substantial right, made upon a summary application, in an action after judgment. It plainly answers each of these requirements.

But it is insisted that it is not a final order. '

It denied the motion, and ended the proceeding. Nothing "further could be done in the proceeding. It closed finally the summary application, and consequently was a final order, and no right remained to the party except to appeal. So, I think the order would have been equally final, had the motion been? granted instead of refused. It would, in that event, be complete and final as to the application : the judgment of the court on the merits of the application.

Whichever way decided, it was final in the sense of a final adjudication. A final judgment means a judgment which concludes the parties, as regards the subject-matter in controversy, in the tribunal pronouncing it, whichever way the decision may be given. It is called final in contra distinction from interlocutory. This is the view taken by this court in Buffalo Savings’ Bank v. Newton (23 N. Y., 160). In that case the sale was set aside, and Denio, J,, says: “ The order was final within the meaning of section 11 of the Code.” All the judges concurred.

But notwithstanding all this, if the order rests purely in the discretion of the court, the appeal will for that reason be dismissed. And this brings us to examine the cases cited by the respondents’ counsel on this motion.

In the last case cited (Buffalo Savings’ Bank v. Newton, 23 N. Y., 160), the appeal was dismissed. Judge Denio says, notwithstanding the order fell directly within the provision of subdivision 3 of section II, still “ it rested purely in the discretion of the court to grant or refuse.”

On looking into that case it will be seen that the motion was addressed to the favor of the court, and was not urged as a matter of legal right. No irregularity even was suggested, but the party asked a favor, and hence the granting or refusing it was purely discretionary.

In Dows v. Congdon (28 N. Y.), a re-sale was ordered, and also a reference was directed to ascertain the value of the land without improvements, with a view to further action in the ease. The appeal to this court was dismissed on the ground that it was not final; all the judges concurring.

Even Judge Emott, who dissented on other grounds, concurred in this. In this case Judge Wright well remarks and notes the true distinction now before us, that the granting of such an order (an order setting aside a judicial sale), when it involves no question of strict legal right, is within the discretionary power of the court below, and not appealable; clearly and, as I think, very justly implying, that if the motion rested on facts giving a strict legal right to demand it, the order would be appealable.

In Wakeman v. Price (3 N. Y., 334), the sale was set aside. It was decided that an appeal would not lie, because the sale was in all respects regular and fair, and the motion was, as the case states, addressed to the favor of the court; hence, purely discretionary. The case of Hazleton v. Wakeman (3 How., 457), was similar to Wakeman v. Price in all respects.

So it seems that the four cases on which the motion before us is based, fail to give it support, ¿unless .this case, like those cited, was before the Supreme Court as a matter of pure discretion, not involving a question of strict legal right.

This is the rule laid down by Judge Wright in Dows v. Congdon, and is unquestionably sound.

So in Tripp v. Cook (26 Wend., 143), the same distinction was marked, and it was then said, in substance, that an order which gave effect merely to the will of the judge was one resting in pure discretion. Not so, however, when a case was made for the application of legal rules and principles of equity.

It now remains to be seen whether the case before us does involve a strict legal right. If it does, the appeal is properly taken.

The party claimed that he had been defrauded.at the sale; that it was unfairly and unjustly conducted to his injury; and he alleged that the plaintiff and purchaser approached bidders and dissuaded them from bidding; that they need not bid, for the plaintiff \^>ld outbid them, and intended to bid it in; and that such persons as wanted to purchase, could buy on more advantageous terms of the plaintiff; and thus discouraged and prevented bidding. The motion was, therefore, grounded on fraud, and thus became a strict legal right.

If the charge of fraud should be sustained, the party was entitled to have the sale vacated—not as a matter of favor, but as a matter of right; and he could have maintained a direct action in equity to set aside the sale, instead of proceeding by motion.

The case of Tiernan v. Wilson (6 Johns. Ch., 411), and of Clowes v. Dickenson (5 Johns. Ch., 235), afterwards in the Court of Appeals (9 Cow., 403), are full on this point. See, also, Cantine v. Clarke (41 Barb., 629). So, it seems that fraud in conducting a judicial sale gives a party a right of action, which may be enforced in a suit instituted for that purpose. This proves it to be a strict legal right,. and it follows that a motion to set aside a sale for fraud involves such right, and it is not therefore discretionary.

This appeal should not, therefore, be dismissed on the ground that the motion was addressed to the favor of the supreme court.

This view is in strict conformity with the rule stated by Judge Wright that the granting of such an order, when it involves no question of strict legal right, is within the discretionary power of the court below, and not appeal-able.

It is next urged, that the appeal in the case under subdivision 3 of section 11 is controlled by section 331, which requires the appeal to be taken “ within two years after the judgment shall be perfected by filing the judgment roll.”

■ The appeal in this case was not within the limitation above specified, unless we either regard the roll incomplete until the order granted on the motion, and also the order of affirmance at general term was attached and made part of it; or unless we regard the order appealed from as a final order in the nature of a judgment.

It was said in Bank of Genesee v. Spencer (18 N. Y., 152), that this class of orders rested^ the assumption that the judgment was valid, and the proceeding-in such case was based upon it; which proceeding itself might terminate in a final order in the nature of a judgment.” This, it seems to me, is a sensible construction to put on this class of orders. The proceeding is a new and irregular one, and demands an adjudication of a new question on new facts occurring after the entry of judgment. As regards these facts, and the adjudication upon them, the final order (as Judge Pratt says) is in the nature of a judgment. In this view, the appeal is in time.

Nor can we now, on this motion, pass on the merits of the application. It is true the court, at special term, held that the party failed to make a case of fraud entitling him to the relief he sought, and the general term came to the same conclusion. But the appellant insists that the supreme court was in error in that determination, and demands that it be corrected "by this court. This question will be determined when the appeal shall be heard on the merits. In that regard, it is enough that the party made a case requiring the application of legal or equitable principles to its determination.

The motion to dismiss the appeal is denied.  