Rovnianek v. Kossalko

■Jenks, J.: Plaintiffs, by virtue of a levy under execution upon their judgment ugainst the defendant, claimed certain moneys deposited by the defendant with the county clerk of Queens county. They moved the Special Term for an order that the county clerk pay such moneys in part satisfaction. The defendant did not appear on the motion, but, by agreement with the defendant, Mrs. Constant appeared and made claim to the moneys. No question was then raised, nor is any question raised before us, as to the right of the court to determine •the question of the ownership of this money upon the motion. The Special Term ordered that “ all the matters arising upon this motion and the claim of Katie Constant be and the same is hereby referred ” to a referee, with directions “ to .hear the proofs submitted by each of ■said parties in reference to their respective claims and to. determine the same with all convenient speed to this court.” The referee took •testimony and thereafter reported “ To the Supreme Court of the State of New York,” stating that he did so as the referee appointed “ to hear and determine in the above-entitled action,” finding divers matters of fact and of law, and directing judgment, with costs “ of this special proceeding,” to the claimant Constant. Mrs. Constant’s attorney gave notice on October 30, 1900, to the plaintiffs’ attorney of the filing of the report and of the testimony on that day. The plaintiffs, under date of November 8,1900, excepted to the rulings of the referee upon the questions of law, seriatim, upon which the report was made, by notice addressed to the county clerk and the claimant’s attorneys, with notice of filing thereon in •the said clerk’s office on November 9, 1900. On November 10th Mrs. Constant’s attorney, upon affidavit setting forth the proceedings and upon a certificate of the county clerk dated November 8th, that the referee’s report was" filed on October 30th, and that no exception thereto had been filed, obtained an order ex parte from the Special Term, not presided over by the justice who heard [488] the motion, confirming the decision of the referee, directing, the county clerk forthwith to pay to Katie Constant or to her attorney the said moneys, and adjudging that Katie Constant have judgment1 against the plaintiffs and petitioners for her costs and disbursements-“'of this special proceeding.” On November 12th notice of the-entry of the order was given, and a judgment was entered in favor of the claimant for $179 taxed costs. On December 12, 1900, the-plaintiffs appealed to this court from the judgment of November 12th, from the decision of the referee, and from the order of November 12th whereby the report was confirmed. ' It is not necessary to review the learned and elaborate discussion of the respective counsel as to the relative rights of the-parties, the practice pursued or the rights -of appeal, for the reason, 'that this'appeal should be disposed of upon grounds not discussed, by counsel. Dor I think that the intention of the learned Special Term was not to enter an order of reference to hear and to-determine-issues. The-case had gone to judgment; the sole question before the court was the motion to compel the county clerk to-satisfy the plaintiffs’ judgment out of money levied upon by' execution, but which moneys were claimed by a third party claiming-under the defendant. I judge that the terms of the -order were an inadvertence', and that instead of stating that “ the matters arising-upon this motion and the claim of Katie Constant be and the saméis hereby referred, * * * with directions to hear the- proofs submitted by each of said parties in reference to their respective claims, •and to determine the same with all convenient speed to this court,” the-order was intended to read “ with directions to hear the proofs submitted by each of said parties in reference to their respective claims: and to report the same (or, to report the same with his opinion) with, all convenient speed to this court”’ In other words, it was a reference-of aid to the court in determining the motion. As was said of a similar proceeding: “ It was not the reference of an actionbut was a reference under a special motion; ” and in this case it was to relieve the court from taking the testimony and" (perhaps) to obtain the opinion, of the referee. (Patten v. Bullard, 3 N. Y. St. Repr. 735; affd., 118 N. Y. 669.) Such a report was not at all conclusive upon the court; it might adopt it or might disregard it. (Martin v. Hodges, 45 Hun, 38, 40 ; Patten v. Bullard, supra.) So far- as -the record [489] shows, the motion has never been decided. Rule 30 provides that if no exceptions are filed thereto, confirmation follows, and the order of confirmation made herein was but the formal execution of the rule. But, for the reasons stated in Martm v. Hodges (supra), by Haight, J., such confirmation of the report did not determine the motion. There is nothing, then, before us to review until that motion is decided, and the appeal must be dismissed, without costs as to either party, and without prejudice to further proceedings by either party. All concurred. Appeal dismissed, without costs to either party, and without prejudice to further proceedings by either party.