The rents which were disposed of by the order from which this appeal was taken were paid into court by consent of the defendant, and were subject to its control and direction. It rested, therefore, in the power of the court to determine what disposition should be made of them pending the accounting and while the action remained undetermined. It had the power to make the plaintiffs receivers of the fund instead of the Union Trust Company, which was appointed originally, and in the exercise of its discretion to award that it be paid over to the party to whom the judgment gave a right to the same, subject to the equitable rights of the defendant, upon such terms as might be proper under the circumstances presented. Even if the order involved a substantial right it was, notwithstanding, discretionary. And being discretionary, it was not appealable within the provisions of the Code. While the General Term can review discretionary orders affecting a substantial right, this court has no such authority. (59 N.Y., 315.)
As the order rested in the discretion of the court and was not appealable, the appeal must be dismissed, with costs.
All concur.
Appeal dismissed. *Page 363