Spear v. Murphy — 85 N.Y.S. 813

Majority

p. 813

SPEAR et al. v. MURPHY.

(Supreme Court, Appellate Division, Second Department.

December 30, 1903.)

Headnote

"1, Action—Motion by Stranger—Appeal.

Where a stranger to an action files a motion therein, an adverse ruling of the court thereon cannot be made the basis of an appeal by a party who did not appear at the hearing of the motion, though the notice of appeal characterizes the order appealed from as denying a motion made by the party appealing.

Appeal from Special Term, Westchester County.

Action by Charles Spear and others against Denis Murphy. From .an order denying a motion made by James E. J. Murphy, not a party to the action, defendant appeals.

Appeal dismissed.

Argued before BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

John F. Brennan, for appellant.

Ralph Earl Prime, Jr., for respondents.

This appeal should be dismissed. The plaintiffs recovered judgment against the defendant, and upon the return of execution unsatisfied procured the appointment of a receiver in supplementary proceedings, who collected a sum of money from the city of Yoiikers in satisfaction of a judgment against that municipality in favor of the defendant, and turned the money over to the plaintiffs. The motion to compel the restoration of the money to the city of Yonkers, which was denied by the order under review, was made not by the defendant, but by James E. J. Murphy, a stranger to this action, who, so far as appears, has not acquired any of the rights or interests affected by the litigation. He made no affidavit upon the application, nor is his name mentioned in the body of the brief for the appellant. I am at a loss to perceive what standing he had to make the motion. It is also to be observed that he has not appealed, but that the appellant is the defendant, Denis Murphy. The latter, however, was not the moving party, and does not appear to •have participated in the motion, or to have been represented by counsel thereon. It is true that the notice of appeal characterizes the order appealed from as “denying a motion made by the defendant to .require the plaintiffs herein and their counsel and William Warburton Scrugham, Esq., as receiver, to pay over to him certain moneys”; but, .as already pointed out, and as the order itself shows, the moving party -was not the defendant at all, but another person wholly outside the .■suit.

p. 814

We have here a motion in an action, made by a stranger i thereto,, which could have been denied on that ground alone, resulting in an order from which the mover has not appealed, but is brought before us by a party who did not apply to the court below for the relief refused, and does not appear in any manner to have been aggrieved: by the refusal to grant it. He has no right to a review of the order under such circumstances, and the proper course is to dismiss his appeal.

Appeal dismissed, with $10 costs and disbursements. All concur.