Opinion
Argued March 18, 1879
Decided April 1, 1879
George W. Cothran, for appellant.
Henry F. Allen, for respondent.
The question whether a re-sale should be ordered was discretionary with the court below, and the order providing for such re-sale is not therefore upon the merits appealable to this court. ( Buffalo Savings Bank v. Newton, 23 N.Y., 160; Crane v. Stiger, 58 id., 625; Hall v. Clawson, 60 id., 339.)
The point presented is, that Clark, who made the application, had no such interest as entitled him to make the motion. It appears that Clark was a judgment creditor of Nancy Bruce, as executrix of Seth Harrington, that Nancy Bruce claims title to a portion of the mortgaged premises by virtue of a deed executed in 1861, and was the purchaser under the mortgage sale, that an action is pending in favor of Clark to set aside the deed to Nancy Bruce as fraudulent, the indebtedness to Clark having been incurred, prior to the date of the deed.
I am not aware of any rule of law requiring a specific lien upon the mortgaged premises, to enable a person to apply for a re-sale. If the deed to Nancy Bruce should be set aside, the propriety of which cannot be considered upon this motion, Clark could require her to lease, sell, or mortgage the premises to pay his judgment. He is therefore interested in preserving the fund, from which alone, he can obtain satisfaction of his judgment. The Supreme Court has control over its own judgments, and the proceedings thereunder, and it may exercise this power at the instance of any person whose rights are injuriously affected by such proceedings. ( Gould v. Mortimer, 26 How. Pr. R., 167, and cases cited; Kellogg v. Howell, 62 Barb., 280.)
It is clear that the rights of Clark may be seriously affected. If his claim is sustained the land constitutes a fund from which he may obtain payment of his judgment, while if the sale should stand, he would be entirely cut off. A somewhat analogous question was considered in Rohrback v. Germania Ins. Co. ( 62 N Y, 47), where we held that a legal or equitable title is not necessary to give an insurable interest to property, and that if one has a right which may be enforced against the property, and which is so connected with it that an injury thereto will result in loss to him, it is sufficient.
We think that the court below had the legal power to act upon the application of Clark, and that the exercise of the power is not reviewable in this court.
It follows that the appeal must be dismissed.
All concur.
Appeal dismissed.