Tompkins v. Hyatt
New York Court of Appeals
Motion to dismiss an appeal. The action was to recover the amount due upon a mortgage of land to which the plaintiff claimed to be entitled by equitable subrogation.
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Motion to dismiss an appeal. The action was to recover the amount due upon a mortgage of land to which the plaintiff claimed to be entitled by equitable subrogation. The judgment established his claim and directed a sale to satisfy it, but as he had been in possession, receiving rents and profits, directed a reference to ascertain their amount, ordered such amount to be deducted by the officer making the sale from the sum to be paid to the plaintiff, and required the referee’s report to be filed; but made no other provision in respect to the custody or disposition of the moneys raised by the…
1Opinion of the CourtDenio, J.
The respondent moves to dismiss the appeal, on the ground that the judgment is not final. The action was brought to enforce certain alleged liens upon real estate owned by the defendants. The judgment of the special term, which was affirmed at the general term, directed the sale of the pre*535mises, and, as to one of the liens for $2,633.06 and interest, the sheriff who should make the sale was to pay the amount to the plaintiff out of the proceeds. He was also directed to pay the plaintiff the further sum of $1,500 out of said proceeds, after deducting thereout the amount which should be found…
2Cases cited2 opinions
- Erwin's Lessee v. DundasSupreme Court of the United States · 1845
- The Hollister Bank of Buffalo v. . VailNew York Court of Appeals · 1857