Cram v. Bradford

By the Court.*—S. B. Strong, J. —It seems to me that the order made at the special term is appealable. The defendant Bradford had a right to have this case, so far as it relates to him, referred, if at all, pursuant to the Code, and to be heard when the report of the referee was presented for confirmation. It was not discretionary in the court to grant or refuse a statutory right. The order has reference to the amount due, and any question as to that involves the merits of the controversy. The appellant has furnished no sufficient excuse for not putting in an answer in season, and none at all for the long delay which subsequently intervened. He cannot, therefore, now claim to be let in to answer as a matter of strict right. ¡Neither am I satisfied, after a careful perusal of all the papers, that he has sufficient merits to allow him to interpose an affirmative defence, upon any terms. [We omit here some remarks of the court, relative only to the merits of the defence proposed to be set up.] The reference was regular as to the parties who had answered. It was irregular, however, as to the appellant, between whom and the plaintiff there were no issues to decide. As to him, all that could be done as to a reference (he having given no consent), was to ascertain and report the amount due. The appellant may yet claim to have this done. Probably, as suggested by the plaintiff, the appellant will not be injured if he should be, as the plaintiff proposes, relieved from personal responsibility. But that cannot be assured as a certainty. Although the [202] appellant has made an assignment for the payment of his debts, there may he a surplus, or he may retrieve his circumstances so as to he able to satisfy his creditors. The order made at special term should be modified, and there should be a reference, as far as it relates to the appellant, to ascertain and report the amount due on the two mortgages. The judgment to remain, however, with a stay of proceedings until the presentation and confirmation of the report, and then the amount to be made conformable to said report. Birdseye, J., delivered an opinion to the same effect. Footnotes [*] Present, S. B. Strong, Emott, and Birdseye, JJ.