(dissenting):
This is an appeal by plaintiff in a foreclosure action from an order staying its proceedings therein.
I am of opinion that .the appeal should be dismissed. The affidavits show and the order recites that on motion duly made in an action for partition ©f the same, premises, in which the appellant was a party defendant, the court at Special Term granted an order staying or enjoining all proceedings on the part of the plaintiff in this action pending the determination of the partition action; and while the record does not technically show that a formal order was entered and served, it does show that the court had heard and decided the motion' and filed an opinion on granting the same. On the filing and publication of that decision and opinion all proceedings upon the part of the plaintiff were as effectually stayed or enjoined as if the formal order had been entered. This has been assumed on the presentation of the appeal herein, and the question intended to be presented by and which has been, argued upon the appeal is, whether it is competent for the Supreme Court on a motion on due notice in a partition action pending in that court to stay Or enjoin temporarily the proceedings on the part of a defendant therein as plaintiff in another action to foreclose a mortgage on the same premises.'
The plaintiff in the partition action was not a party to the foreclosure action and, therefore, had no standing to move for a stay therein. I am of opinion that the court had jurisdiction to make the order in the partition action, - and if so then the order may not be attacked collaterally. It may only be disregarded here on the theory that it is a nullity, and that-view cannot, T think, he sustained. • Proceedings on the part of the plaintiff herein having been stayed or enjoined in the partition action, the plaintiff is not -prejudiced by the fact that such stay has been incorporated in the order herein and is not thereby relieved from the original stay or injunction order.
I, therefore, vote to dismiss the appeal.
Order reversed, with ten dollars costs' and disbursements, and motion to appoint referee granted, with ten dollars costs. Order to be settled on notice.