(dissenting). In the circumstances here disclosed the order of reference should not be vacated. The Superintendent of Insurance has at no time objected to the jurisdiction and on the original motion at Special Term conceded the right of the court to act, reserving merely his right to reject, approve or disapprove of any ultimate action to be taken.
The appellant is a stockholder, not a creditor, of the company in liquidation. It appeared by counsel on the original application and made no objection to the granting of the relief and took no appeal from the order entered. This motion to vacate from the denial of which it now appeals was made long after the time to appeal from the original order had expired. In this connection the learned justice at Special Term said: “ It [the appellant] must, therefore, * * * be deemed to have waived any right which it might otherwise have had to question the validity of the order. Although the motion could accordingly be denied on this ground, the court prefers to decide the application upon the merits instead of disposing of it on technical considerations.”
This court, however, has the technical question before it. It is well settled that the time within which an appeal may be taken may not be enlarged, particularly after the expiration thereof, by a motion made to vacate the order.
The Superintendent of Insurance has not formulated even as yet any plan for the sale or other disposition of the assets. He is a party to the reference and may join in suggestions, and, in addition gain the benefit of the views of creditors and others particularly interested in the disposition of the assets. The Superintendent under his reservation of rights may still accept or reject any plan that may be formulated.
The claim of -unlawful delegation of power raised here was likewise raised, but overruled, in an action involving the Superintendent of Banks with respect to proceeding under section 69 of the Banking Law, a statute similar to section 421 of the Insurance Law, here involved. (Broderick v. Betco Corporation, 149 Misc. 245; affd., 244 App. Div. 710; 269 N. Y. 642.)
In case the plan formulated under the reference is not adopted, the expenses are reduced to a minimum as the order provides there is to be no allowance for counsel fees, but only an allowance for the reference itself. Moreover, as stated on the argument, the reference has been practically completed.
Because the appellant has no standing by reason of not having appealed from the order sought to*be vacated, and also upon the *496merits, the order appealed from refusing to vacate the order of reference should be affirmed.
Glennon, J., concurs.
Order reversed, with twenty dollars costs and disbursements, and motion to vacate order of reference granted.