(dissenting in part). I agree with the majority that there should be struck from the judgments appealed from the provision in respondents’ favor for a stay of proceedings. Such stay is unwarranted in view of the undoubted right of the mortgagees, because of impressive defaults, to resort to the mortgaged real estate. Even pending appeal, such stay would be in order only upon security given. (Civ. Prac. Act, § 598.)
Upon the main question as to the rights of the appellants, mortgagees, in the nursery stock, I am of opinion that until the delivery to them of the referee’s deed in this foreclosure, if they shall become purchasers at the sale, the mortgagees have and will have no rights in that stock, which is, and during that period will be, removable from the mortgaged premises for purposes of sale by the trustee in bankruptcy, in whom the mortgagor-owner’s interest in that stock is vested. It will be thus removable for such pur*387poses until, but not after, the delivery of the referee’s deed. (Vide Hamilton v. Austin, 36 Hun, 138; affd. without opinion, 107 N. Y. 636; and Batterman v. Albright, 122 id. 484.)
Trees grown for sale in a nursery, whatever their size or age, are in a legal category which is similar to that in which are emblements. (Cases supra.) From this it follows that the mortgagor-owner may remote them from the premises for the purposes of sale, without let or hindrance by the mortgagees, until the delivery of the referee’s deed; they are not fixtures which are irremovable from the realty. (Cases supra.) No such right of removal will exist after the delivery of the referee’s deed. (Cases supra.)
In so far as there may be conflict in the rulings announced in the Hamilton case, in which no opinion was written by the highest court, and in the Batterman case, in which an opinion was written, the latter must be deemed controlling, at least in an advisory way, notwithstanding the fact, to which the prevailing opinion refers, that certain suggestions in the opinion of the Court of Appeals in the Batterman case, as to the respective rights of mortgagor and mortgagee before foreclosure, constitute obiter, dicta. The doctrine of that case, however, it seems to me, warrants my conclusion above indicated.
It is noted that a receiver of the mortgaged premises herein was appointed. He never took possession of the mortgaged premises or of the nursery stock. In view of the nature and legal attributes of that stock, he was well advised when he omitted to take possession of it, because of lack of right in the mortgagees to resort to it for the satisfaction of the mortgage debts during the pendency of the foreclosure and prior to the delivery of the referee’s deed, during which period the mortgagor-owner, without tenants, had a right to absolute possession. (Vide Holmes v. Gravenhorst, 263 N. Y. 148.)
There are rulings in other jurisdictions, cited in the prevailing opinion, to the effect that trees cultivated in a nursery for sale purposes constitute a part of the realty. Those rulings, unqualified, are not in accord with our judicial policy. While attached to the soil, that stock is undoubtedly a part of the realty; but this statement is subject to the qualification that until the delivery of a deed in foreclosure it has, as of necessity it must have, the attributes of personalty, removable by the mortgagor-owner for purposes of sale. (Vide Duffus v. Bangs, 43 Hun, 52; affd., 122 N. Y. 423.)
Certain authorities in still other jurisdictions (Matter of Pennsylvania Nursery Co., 7 F. Supp. 726; Matter of Buchanan, 24 F. [2d] 553) are more in accord with our policy as I think it is inferable from Hamilton v. Austin (supra) and Batterman v. Albright (supra).
The law is unsettled but undoubtedly will be clarified and settled *388when and if the opinion of our highest court is invoked in these Cáse,si.
The judgments should be modified by striking therefrom the provisions for a stay of the foreclosure sale and in such other respects as will conform to the views expressed in this dissent, and as thus modified they should be affirmed in so far as appeals are taken therefrom, without costs.
Judgment in each action modified by striking out the decretal paragraphs adjudging that the nursery stock is- not subject to the liens of the mortgages and the paragraph directing a stay of the foreclosure sale, and by substituting therefor a decretal paragraph adjudging that the nursery stock is subject to the mortgage liens. As so modified, the judgment in each action, in so far as an appeal is taken therefrom, is affirmed, without costs. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Settle orders on notice.