Van Vleck v. Ballou — 58 N.Y.S. 125

Majority

p. 125

(40 App. Div. 489.)

VAN VLECK et al. v. BALLOU.

(Supreme Court, Appellate Division, First Department.

May 19, 1899.)

Headnote

1. Appeal—Parties Appellant—Sheriff’s Suit.

An appeal, in a sheriff’s suit in aid of an attachment, brought in the name of the sheriff and the creditor jointly, must be taken jointly by both.

2. Same—Review—Exceptions—Decision of Referee.

The decision of a referee will not be reviewed in the absence of an exception thereto.

3. Same—Failure to Except.

Where no exceptions were taken on the trial, an appeal from the decision presents nothing for review.

Appeal from trial term.

Action by Robert J. Van Vleck and Hugh J. Grant, sheriff, against George William Ballou, in aid of an attachment. There was a judgment for defendants, and plaintiff Van Vleck appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, PATTERSON, and O’BRIEN, JJ.

Howard Mansfield, for appellant.

Julius F. Workum, for respondents.

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 Vleck and the sheriff of the county. The money, if recovered, is to be paid to the sheriff, and he aloné 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 (March, 1899), 57 N. Y. Supp. 416 . 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. All concur.