Guarantee Trust & Safe-Deposit Co. v. Philadelphia, R.&N.E.R. Co.

• Decision Date: 03 October 1899
• Citation: 160 N.Y. 1,54 N.E. 575
• Parties: GUARANTEE TRUST & SAFE-DEPOSIT CO. v. PHILADELPHIA, R. & N. E. R. CO.
• Court: New York Court of Appeals Court of Appeals

160 N.Y. 1

54 N.E. 575

GUARANTEE TRUST & SAFE-DEPOSIT CO.

v.PHILADELPHIA, R. & N. E. R. CO.

Court of Appeals of New York.

Oct. 3, 1899.

Appeal from supreme court, appellate division, Second department.

Suit by the Guarantee Trust & Safe-Deposit Company, trustee, against the Philadelphia, Reading & New England Railroad Company. Petition of intervention by the Philadelphia & Reading Coal & Iron Company. There was an order confirming in part the report of a referee, which was reversed in part and affirmed in part by the appellate division (52 N. Y. Supp. 116), and petitioners appeal. Appeal dismissed.

Treadwell Cleveland, for appellants.

James Armstrong, for respondent Sherwood.

Milton A. Fowler, for respondent Railroad Co.

David B. Hill, for respondent plaintiff.

MARTIN, J.

This action was commenced August 19, 1893, to foreclose certain mortgages made by the defendant, which were given to secure the payment of its bonds. On the same day James K. O. Sherwood was appointed receiver of the defendant pendente lite, with the usual powers of receivers in such cases. The order appointing him also provided that he might pay for such repairs, supplies, labor, and services as he, in his judgment, considered necessary to conserve the property and operate the road of the defendant, and likewise that he might pay debts of the defendant theretofore incurred for the current expenses of the operation of the road during the three months next preceding the date of the order. In February, 1893, receivers of the Philadelphia & Reading Coal & Iron Company had been appointed. On April 2, 1894, they intervened in this action by petition, alleging that between May 31, 1893, and August 19, 1893, the company had sold and delivered to the defendant coal necessary to operate its railroad, for which there was due the amount of more than $15,000. The defendant filed an answer to the petition, and a referee was appointed to take proof as to the claim of the receivers of the coal company. A trial was subsequently had before the referee, who reported the evidence to the court, with his opinion thereon. As shown by his report, he was of the opinion that the petitioners had established a claim against the defendant for $15,615.42, and that the receiver should be directed to pay the same, with interest, costs, and disbursements. Upon motion before the special term an order was made confirming the report of the referee so far as it found that the company represented by the petitioners had between the 19th of May, 1893, and the 19th of the following August, sold and delivered to the defendant coal necessary for the operation of its road, and that its value was the amount stated. It, however, denied the motion so far as it was sought to obtain an order directing the receiver of the defendant to pay the claim, and instructed him not to pay it, but to pay the petitioners $360, the fees and disbursements of the referee. An appeal to the appellate division from so much of the order as denied the motion for an order directing the receiver to pay the claim was taken by the petitioners. The plaintiff and defendant appealed from that part of the order which approved and confirmed the portion of the report of the referee in which he found that the coal had been furnished to the defendant by the corporation represented by the petitioners, and also from that portion which directed the receiver to pay the petitioners $360. Sherwood, as receiver, also appealed from the latter portion of the order. June 7, 1898, the appellate division affirmed the portion of the order from which the petitioners appealed. The portion of the order which directed the receiver to pay referee's fees was reversed, and the appeals of the plaintiff and defendant were dismissed. On the 11th day of July, 1898, the respondent served a copy of the order of the appellate division, upon which was indorsed the following notice: ‘Please take notice that the within is a copy of an order on appeal from order duly made and entered herein and filed in the office of the clerk of Dutchess county on the 9th day of July, 1898.’ An admission of the service of a copy of such order and notice of entry, Duly indorsed thereon, was signed by the appellants' attorneys, and dated July 11, 1898. September 3, 1898, the petitioners served a notice of appeal to this court from every part of the order of the appellate division, except the portion which dismissed the appeals of the plaintiff and defendant. May 8, 1899, more than nine months after a copy of the order of the appellate division and notice of its entry was served, upon the application of the appellants, the appellate division made an order allowing the petitioners to appeal to this court. The order also provided that such permission should apply to any appeal already taken by them, stated that certain questions of law had arisen which ought to be reviewed by the court of appeals, and certified the following question to be answered by that court: ‘Are the petitioners, Joseph S. Harris, Edward M. Paxson, and John Lowber Welsh, as receivers of the Philadelphia & Reading Coal & Iron Company, entitled to payment of their claim out of any funds in the hands of James K. O. Sherwood, as receiver of the Philadelphia, Reading & New England Railroad Company, in preference to the bondholders of the said Philadelphia, Reading & New England Railroad Company?’ The order of the appellate division further provided that it should have the same force and effect as if it had been duly made and entered on or before September 2, 1898, and that the same be entered nunc pro tunc as of that day.

Upon the argument the respondent insisted that this appeal should be dismissed. That insistence was based upon the theory that no valid appeal has been taken to this court. It is obvious that the order from which an appeal was attempted to be taken was not a final order in a special proceeding, and hence was not appealable to this court as a matter of right. This question has been so often, so fully, and so recently considered by us, that we deem any further discussion of the appealability of such an order as wholly unnecessary. New York Security & Trust Co. v. Saratoga Gas & Electric Light Co., 156 N. Y. 645, 51 N. E. 297;People v. American Loan & Trust Co., 150 N. Y. 117, 44 N. E. 949;People v. St. Nicholas Bank, 150 N. Y. 563, 44 N. E. 1127;Merriam v. Lithographing Co., 155 N. Y. 136, 49 N. E. 685;Agency v. Rothschild, 155 N. Y. 255, 49 N. E. 871;Van Arsdale v. King, 155 N. Y. 325, 49 N. E. 866;In re Attorney General, 155 N. Y. 441, 50 N. E. 57. It is therefore manifest that at the time when the notice of appeal was served the appellants had no right of appeal, and hence the service of the notice was without authority and a mere nullity. This position is not seriously contested. The claim is that the order of the appellate division allowingan appeal to this court, certifying a question to be answered...