Knickerbocker Trust Co. v. Oneonta, C.&R.S. Ry. Co.
| Decision Date | 08 February 1910 |
| Citation | 90 N.E. 1111,197 N.Y. 391 |
| Parties | KNICKERBOCKER TRUST CO. v. ONEONTA, C. & R. S. RY. CO. et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Action by the Knickerbocker Trust Company, as trustee, against the Otsego & Herkimer Railroad Company and the Oneonta & Mohawk Valley Railroad Company and others. From an order of the Third Appellate Division (134 App. Div. 775,119 N. Y. Supp. 304), affirming an order of the Special Term, denying an application by the first-named defendant to compel the other defendant named to execute a deed to property claimed under a purchase on mortgage foreclosure proceedings, defendant first named appeals. Appeal dismissed.
Henry C. Henderson, for appellant.
Julius Henry Cohen, for respondents.
The plaintiff was a trustee of and under a mortgage executed by the defendant to secure an issue of bonds, and on default brought this action and obtained a judgment of foreclosure and sale of the premises covered by the mortgage. On the sale one Bean, apparently as a representative of others, bid off the property and subsequently transferred his bid to the respondent Oneonta & Mohawk Valley Railroad Company, which had in the meantime been organized for the purpose of taking over the property. Said company defaulted in fulfillment of the purchase, and a resale of the property was ordered. On such resale one Starrett bid the same off and subsequently transferred his rights to the appellant Otsego & Herkimer Railroad Company, which had been organized for the purpose of taking the same over. Thereafter and on the foot of the original judgment in foreclosure, and entitled in the original action, the application was made which resulted in the order now appealed from. This application was that the respondent railroad company as transferee of the purchaser on the original sale should execute to the appellant railroad company as the transferee of the purchaser on the resale a deed covering the property bid off by such original purchaser and also, as claimed by the respondents, covering certain rights and property acquired by the railroad company while it was in possession under the original sale and which were not covered by the judgment of foreclosure and sale. The application was denied.
The only question which it is necessary to consider is the one involving appellant's right to appeal as a matter of right. If it has any such right, it exists under the provisions of section 190 of the Code allowing appeals from ‘judgments or orders finally determining actions or special proceedings.’ If appellant's application had been made under ordinary circumstances to compel the defaulting purchaser on one...
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