In re Norton — 216 N.Y. 637

Majority

p. 637

In the Matter of the Petition of Peter J. Norton, Respondent, for Visitation of the Springfield, L. I., Cemetery Association. Thomas E. Colby et al., Appellants.

Headnote

Appeal — order appointing referee in visitation proceedings under section 16 of Membership Corporations Law not appealable to Appellate Division.

An order appointing a referee to conduct the investigation in a proceeding instituted under section 16 of the Membership Corporations Law (Cons. Laws, ch. 35) to make visitation and inquiry into the affairs of a membership corporation, is not appealable to the Appellate Division. It should contain only the statutory provisions defining the scope and method of the referee’s investigation and not anything in the way of an adjudication upon the merits.

Matter of Norton, 168 App. Div. 385 , affirmed.

(Argued September 30,1915;

decided October 12, 1915.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 25, 1915, which dismissed an appeal from an order of Special Term finding certain facts and appointing a referee to take and state an account of property and liabilities in a proceeding under section 16

p. 638

of the Membership Corporations Law for a visitation by a justice of the Supreme Court of the affairs of the Springfield, L. I., Cemetery Society, a membership corporation.

The following questions were certified. “1. Has the Appellate Division of the Supreme Court jurisdiction to review on appeal an interlocutory order directing a visitation of a membership corporation in a proceeding under section 16 of the Membership Corporations Law ? 2. Has this court jurisdiction to review on appeal the order appealed from made by the Special Term and entered in the office of the clerk of the county of Kings on the 30th day of December, 1914, in this proceeding under section 16 of the Membership Corporations Law ? ”

Daniel Day Walton for appellants.

Robert H. Wilson for respondent.

In a proceeding instituted under section 16 of the Membership Corporations Law to make visitation and inquiry into the affairs of a membership corporation, the order appointing a referee to conduct the investigation is not appealable to the Appellate Division. It is manifestly the intention of the section that the right to appeal should be limited to the final order made in the proceeding.

The order of reference should contain only the statutory provisions defining the scope and method of the referee’s investigation and not anything in the way of an adjudication upon the merits. The inclusion of such matters in the order will not render it appealable, but as they are improper and without authority they may be treated as surplusage.

The questions certified to this court by the Appellate Division should be answered in the negative and the order appealed from affirmed, without costs.

Willard Bartlett, Ch. J., Chase, Collin, Cuddeback, Hogan, Seabury and Pound, JJ., concur.

Order affirmed.