By the Court.
Campbell, J.The action in this case was commenced after the passage of the act of April 21, 1862, being an “ An act to facilitate the closing up of insolvent and dissolved mutual insurance companies.” The objection at first raised against the act, that it was unconstitutional for it impaired or took away the right of trial by jnry, has been disposed of in this court. The constitutionality of the law has been upheld. Sands v. Kimbark, 27 N. Y. 147. To the same effect was Sands v. Tillinghast, 24 How. Pr. 435.
*148Section 5 of the act provides, that all actions then pending in the supreme court, at the time of the passage of the act, might be referred by the court. Section 1 provides that if any controversy or disagreement shall arise between the receiver of an insolvent or dissolved mutual insurance company, in the settlement of any claim against any member or any other person, "the same maybe referred to a sole referee”—that is, any controversy or disagreement which may arise between the receiver and a member or other person, may be referred. Surely, where an action has been commenced by the receiver, and an answer has been put in denying the receiver’s right to recover, a controversy has arisen both within the letter and the spirit of the act. The act provides that applications may be made for the appointment of a referee to a justice of the supreme court residing in the district where the receiver keeps his office. In this case, the order was made by such justice, but he was holding a special term of the court at the time. If the order could have been made by the justice at chambers, it Avould be difficult to see why he could not make it at a special term, then being held at his chambers. But this controversy, at the time the order of reference was made, had assumed the form of an action, and the action was then pending in the supreme court, which made it eminently proper that the order of reference should be made in court.
I am unable to see that any error was committed.
But the court are of opinion that the order Avas not appeal-able, and the appeal should be dismissed, with costs.
The Court concurred, however, in the opinion, on the merits also, and held that the order should be affirmed.*
Order affirmed, with costs.
This appears by a reference to the minutes made on the consultation of the court; and the remittitur was therefore correct notwithstanding the remarks in Sands v. Birch, 19 Abb. Pr. 256, where the, conclusion of the opinion, in favor of dismissing the appeal was thought to" sanction disregarding the views expressed on the merits. It was then the custom of this court, on appeals where the merits had been argued and examined, to affirm the order if clearly correct, although at the same time they might hold the order to be not appealable.