Van Vleck v. Ballou — 40 A.D. 489

Majority

p. 489

Robert B. Van Vleck, Appellant, Impleaded with Hugh J. Grant, as Sheriff of the City and County of New York, v. George William Ballou, Respondent.

Headnote

An appeal by one of two plaintiffs, who has no beneficial interest in the action, presents no question to the appellate court — a referee’s decision cannot be reviewed, in the absence of exceptions.

In an.action brought by a sheriff and an individual plaintiff to recover moneys; which, if the action be successful, are to be paid to the sheriff, who alone has any beneficial interest therein, an appeal from a judgment in favor of the-defendant, taken by the individual plaintiff, in-which the sheriff does not join, does not present any substantial question to be considered by the appellate court. . • -

Where no exception is taken to a decision filed by a referee, the Appellate Division has no power, upon an appeal from the judgment entered upon the decision, to review any question which might have been raised upon the trial.

Appeal by the plaintiff, Robert B. Van .Vl.eclc, from a judgment of the Supreme Court in favor of the defendant, entered in the office

p. 490

of the clerk of the county of New York on the 23d day of June, 1897, upon the report of a referee.

Howard Mansfield, for the appellant.

Julius F. Workum, for the respondent.

This appeal'cannot be considered upon the merits, for two reasons. In the first place all the plaintiffs do not join in it. The action is brought by Van Yleck and the sheriff of the county. The money, if recovered, is to be paid to the sheriff, and he albne has any beneficial interest in it. An. appeal taken by one plaintiff, in which the other does not join, does not present any substantial question to be considered.

Besides that it does not appear that any exception was taken to the decision of the referee. Where such is the case, the court has no power to review any question which might have been raised' upon the trial. (Thompson v. Schwartz, 39 App. Div. 658 .)

But even if there were power in the court to review exceptions taken upon the trial, in the absence of an exception to the decision, no exceptions were taken upon the trial of this case, and, therefore, there was nothing to review.

The judgment, therefore, must be affirmed, with costs.

Yan Brunt; P. J., Barrett, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs.