By the Court.
James, J.This order, as modified by the general term, was both just and right. The action was to foreclose a mortgage made by defendants to Louisa T. Milman, and claimed to be held by plaintiff as part of the assets of her trust. The execution and validity of the mortgage were not denied. It was admitted to be due, and the mortgagors did not wish to control or delay its payment. On the contrary, they had the money, and were anxious to satisfy and „ discharge the mortgage. But the mortgagee si ill claimed the mortgage as her property, and the money due upon it as due to her. She declared that she had never parted with her title to it, and had notified- the defendants of this, and forbidden them to pay it to the plaintiff. The plaintiff had found the instrument among her testator’s effects, but there was no written assignment attached, and none could be found to verify the testator’s title.
Under this state of facts, the defendants procured the order appealed from.
The Code, section 122, provides that “a defendant, against whom an action is pending upon a contract, &c., may, at any time before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes a demand against him for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the *361amount of the debt, &e.; and the court may, in its discretion, make the order.”
This order was based upon an affidavit of the defendants, entitled in the action, setting forth that said mortgagee has made demands upon them for the payment to her of the amount due on said mortgage, and has notified them not to pay said mortgage to any person but her, and claims that she is the sole and lawful owner of the said mortgage, and that said claim or demand was made without any collusion or understanding between said Louisa and defendants, or either of them: also, upon an affidavit of their attorney, that no answer to the action had been put in, and that he knew, of his own personal knowledge, that Louisa T. Milman had claimed, and now claims, that said mortgage is her property, and that no other person has any interest in the same: also, affidavits of service of notice of this application upon said Louisa T. Milman and the plaintiffs attorney: also the affidavit of said Louisa T. Milman, that said mortgage is her sole and exclusive property; that she never assigned or agreed to assign the same, or any interest therein, nor ever received any consideration for any assignment thereof: also, the summons and complaint; and also, upon the affidavit of the plaintiffs attorney, in opposition, that said Louisa T. Milman did in April, 1866, sell and assign to plaintiff’s testator said mortgage, and the bond accompanying the same.
These affidavits gave the special term jurisdiction in the matter of the application, and the allowance of the order was in its discretion. It is so declared by the Code; and being discretionary, it most likely was not the subject of review. I am, therefore, of the opinion that the appeal should be dismissed.
If, however, the order is appealable, it should be affirmed. Its justice to the defendant is too transparent to require illustration. They make no contest; they admit the obligation, and that it is past due, and desire to pay it. The contest is between others for the money. The instrument is not negotiable. One claimant is the payee named in the mortgage, without possession; the other is the possessor of the mortgage, without any other evidence of title. The only matter in dis*362pute is the ownership of the mortgage. In that the defendants have no interest. It is asserted, that sustaining this order will produce litigation and complication between mother and daughter. But that is a matter this court can not consider. It is not an element in the case. The Code, section 133, provides for protection to a defendant; and if a case is presented showing him entitled to the benefit of its provisions, in the discretion of the court below, this court cannot review it because it may produce complication between the several claimants of-the fund.
On the merits, the order should be affirmed.
A majority of the judges concurred in holding that the order was right upon the merits.