Feeeman v. Munns

15 Abb. Pr. 468

• Court: New York Supreme Court
• Decided: February 15, 1862
• Status: Published

Opinion

Ingraham, J.

The right of Allerton to the surplus moneys, in this case, depends mainly upon the question which arises as to the effect of the foreclosure of McBeynolds, and of the sale in that case, which has been vacated by the general term. If that decision shall be sustained, I see no reason why Allerton is not entitled to these moneys. Although no reason was given for the order of the general term, I conclude that it was made on the supposition that Sherman and his assignees were not affected by that foreclosure.

Following that decision, it is proper that the order now appealed from should be affirmed.

At the same time the referee has found and reported that the order of the general term has been appealed from. Under such circumstances it would hardly be proper to order surplus moneys to be paid over to a claimant, while there is so much doubt as to the rights of an infant, who has appealed therefrom. If the money is now ordered to be paid, she might, in the' event of the reversal of that order, be remediless. Under such circumstances, in affirming the order appealed from, an opportunity should be afforded to the parties to appeal from this order before the money is paid over. The order adopted at the special term is a proper one to be added here to the affirmance, viz.: that all proceedings be stayed for twenty days to allow the appellants here to perfect an appeal to the Court of Appeals, on filing a bond in $500, conditioned as stated in the order appealed from, in which case proceedings are stayed until decision.

The order is affirmed on those conditions.

Sutherland, P. J. and Clerks, J., concurred.