Chesterman v. . Eyland , 1878 N.Y. LEXIS 765 ( 1878 )

Rapallo, J.

The order appealed from in this case reverses the order of the Special Term which denied in toto the application of Mary C. Timpson the petitioner, and orders Mr. Tappan the present chamberlain to pay over to her, her proportion of so much of the fund in question as is conceded to be in his hands. To this part of the order no objection can be made by Mr. Lane, and Mr. Tappan has not taken any appeal. But the order goes farther and directs a reference to take proof of the facts relating" to the manner m which Mr. Lane the late chamberlain invested the fund, the sufficiency of the securities taken by him, and his acts in relation thereto, and his disposition thereof at the time Mr. Tappan became city chamberlain, and as to what Mr. Tappan did with the securities and whether he made any changes in the investments and whether any payments were made thereon, and to take proof of all the facts affecting the merits of the application. The order further provides that on such proofs the petitioner may apply to the court for such relief as she may be advised, and all questions are reserved until such application shall be made.

From this order Mr. Lane, the late chamberlain, appeals in so far as the order affects him. It is apparent that the order determines nothing as to Mr. Lane and is in no respect final, but simply provides for the taking of proofs upon which an application may or may not be made against him or Mr. Tappan or both. Such an order is purely interlocutory and affects no substantial right and is not appealable to this court. The counsel for Mr. Lane contends that not being in office at the time of the application he was not amenable to a summary proceeding of this description, but could only be proceeded against by action if he had been guilty of any misconduct in respect to the fund, and therefore the court had no power to make any order against him in this proceeding. This question will arise when some application is made against him founded upon the proofs which may be taken by the referee. The order now appealed from determines nothing in respect to him, and it is possible that no application may ever be made against him. When one is made, the objection can be taken, and if sustained the proceedings of the referee will not injure or affect him. Whether his position be sound or not we think the court had power to make the order in question. It simply provides for an investigation into the facts relating to a fund in court which is alleged to have been lost or wasted by the custodian to whom it was committed by the court, pursuant to law. It calls for an inquiry into the investments of the fund, and the history and disposition of the securities and what has become of them, and whether any payments, have been made upon them, and into the acts of the present as well as the late chamberlain in regard to the fund. This information the court had a right to obtain, and we cannot see that this order affects any right of Mr. Lane so as to entitle him to appeal.

The appeal should be dismissed, with costs.

All concur, except Miller and Earl, JJ., absent.

Appeal dismissed.