Mills v. Stewart

— The order appointing the referee cannot be reviewed upon this appeal. It is not an intermediate order, nor is this an appeal from a final judgment, within the meaning of section 1316-of the Code of Civil Procedure. Fox v. Matthiessen, 84 Hun, 396 ; 65 St. Rep. 554 . The only way to review such an order is by a separate appeal. The appellant cannot submit to an order, and proceed to a hearing upon the merits, and take his chances of a favorable decision, and then, in the event of its being adverse to-him, attack the regularity of the order, or the authority of the-court to make it.

The question then comes upon the merits of the decision of the referee so appointed. The plaintiff’s attorney had the right to act for him in all matters relating to the foreclosure suit, until final judgment, at least. The proceedings here had not gone to that length. Only an interlocutory decree had been entered. The agreement between the plaintiff's attorney and Scott was in effect, nothing more than the law would award to Scott upon payment of the mortgage. Twombly v. Cassidy, 82 N. Y. 157 ; Arnold v. Green, 116 id. 566-572; 27 St. Rep. 724 . The amount paid to Scott is undisputed. The person to whom it was paid being the plaintiff’s attorney, and in the very proceeding in which it was paid, the amount thereof should be credited on the interlocutory judgment.

The order should therefore be affirmed, with costs and disbursements.

All concur.