(dissenting.) The cases cited in the opinion of the learned justice at special term quite conclusively show that the "practice in the appeal to the court of appeals by Rogers was irregular and unauthorized. Every party to an action or judgment, who can be affected by the decision of the appellate .court, is entitled to notice of the appeal. If such notice is not given, such appeal may be dismissed upon the application of the party omitted or the respondent.
Hnder § 327 of the Code, the adverse party may be equally a co-defendant or co-plaintiff with the appellant, if their interests be or may become, in fact, adverse. Hiscock v. Phelps, 2 Lans. 106; Cotes v. Carroll, 28 How. 436; S. C. in Court of Appeals, 31 id. 146; Thompson v. Ellsworth, 1 Barb. Ch. 624; Willcox v. Smith, 26 Barb. 316; Brown v. Evans, 34 id. 594.
In this case the fact that Knights had no notice of appeal was overlooked or disregarded, and the judgment entered upon the report of the referee was modified to his serious prejudice.
The reasons for such modifications appear in the report of the case, 47 N. Y. 233. Knights was not a party to that appeal. Could he he affected or his rights prejudiced by the decisions of courts before which he had no opportunity to he heard F To recognize such a doctrine would seem very dangerous.
In very many equity cases the rights of parties are relative, and a change in the status of any one may affect others. A partial *265appeal, or an appeal of which only a few of the parties are notified, might lead to the grossest injustice. Has an appellate court the right to adjudge even indirectly the equities of a person not before the court, though such person may be a party to the judgment ? Is it not a jurisdictional defect ?
The court passes only upon such questions as may be presented by the parties before it.
Such persons are acting for their own interests, and may be quite indifferent to the rights of other parties not brought before the court. Such absent parties are not parties to the new judgment. As in this case Knights was a party to the original judgment rendered on the referee’s report. He was satisfied therewith. Hnder that judgment he could not have been made to pay any thing until an execution against Rogers was returned unsatisfied. Consequently he was a mere nominal party, for it was conceded upon the argument that Rogers was responsible. By this modification, of that judgment Rogers is absolutely discharged, and Knights is made primarily responsible for the half of this deficiency of over $2,200.
It is a very serious charge, and, so far as appears, made without the knowledge or suspicion of Knights, certainly without such notice as the law requires.
If Knights could have been heard upon the appeal he might have satisfied the court that the judgment was right, or at least that a new trial should have been granted upon which Rogers’ liability could have been contested by other or further evidence. ,
It was urged upon the argument by plaintiff that the report of the sale having been confirmed upon notice to Knights, and he not having appealed therefrom, is concluded thereby.
The argument is specious, but unfounded.
The rights of the parties are controlled by the judgment, and not by the referee’s report or the order confirming it. The confirmation of the rejjort does not give the right to issue execution. It does fix and determine the amount of the deficiency. An appeal from that order could bring up no other questions than the regularity of the sale, the disposition of the proceeds and the amount of deficiency.
As no question arises in those respects there was nothing from which to appeal, although the whole order was objected to by Knights.
Again, it is insisted that the judgment, as modified by the appellate court, should be the guide of this court in adjudicating upon *266this order. But that is begging the whole question. If Knights was not a party to that judgment, he should not be bound by it.
As he was a party to the first judgment, he is bound by it, and he has the right to the indemnity provided thereby. Such rights, I apprehend, can only be got rid of by an appeal to which he is a party, either as appellant or respondent.
Knights may have no right to litigate with Rogers questions arising between themselves. But he has a perfect right to litigate and have determined the equities of all the defendants touching the order in which they shall be called upon to pay deficiencies. Code, § 274; Kay v. Whittaker, 44 N. Y. 565.
So much may be said in support of the order appealed from. The learned judge, at special term, suggests the embarrassments to which the plaintiff may be subjected by this order.
They cannot readily be overlooked.. It is not, however, for us to suggest a remedy.
It is the theory of the law that there is a remedy for every wrong, a proper mode of enforcement of every right. The plaintiff clearly had rights against the defendant; which, in equity, ought to be preserved.
It is to be hoped they may be enforced by some adequate proceeding. It is not, however, deemed safe to allow it to be done in the manner proposed in this case.
Order reversed.