There is a preliminary question, viz. whether an appeal lies to this court from the order. Our jurisdiction to review orders is limited to three classes: 1st. When an order affecting a substantial right is made in an action, and in effect determines the action and prevents a judgment from which an appeal may be taken; 2d. When the order grants or refuses a new trial; 3d. A final order, affecting a substantial right, made in a special proceeding or upon a summary application, in an action, after judgment. (Code, § 11.) The order which the appellants seek to review sets aside a sale of mortgaged premises, and directs a reference to ascertain when the Canandaigua and Niagara Falls Rail Road Company, and the Buffalo, Corning and New York Rail Road Company, two of the defendants in the foreclosure suit entered on the mortgaged premises, and under what agreements or title respectively; also the value of the premises occupied by the rail roads respectively at the time they took possession of the same, and what the relative value of such parties respectively, independent and free of the improvements put by the owners of such rail roads, and with reference to the value of the rest of, and of the whole of the mortgaged premises, and what the costs and value of such improvements respectively were. Either party, on filing the report of the referee, might move for its confirmation and for an order determining the payments to be made by the rail road owners respectively. *Page 124
I regard the order as not appealable. It does not fall within the first class. It neither, in effect, determines the action in which it was made, nor presents a judgment from which an appeal might be taken. It is substantially an order directing a resale of mortgaged premises on the ground of mistake and surprise. The granting of such an order, when it involves no question of strict legal right, is within the discretionary powers of the court below, and not appealable. Nor does it fall within the third class. It is not a final order. A reference is directed to ascertain the proper order of the sale and the value of the lands. It determines no amount, nor even the nature of the amount to be paid. All questions growing out of the reference are reserved until the coming in of the referee's report, when an order is to be made. From that order, when made, the plaintiffs, and the Buffalo, New York and Erie Rail Road Company, which seems to have been acting at the sale with the view of screening itself from liability, may doubtless appeal. But this appeal is premature.
The appeal should be dismissed.
DENIO, DAVIES, ROSEKRANS, MARVIN and BALCOM, Js. concurred.
SELDEN, J. having been counsel in the cause, took no part.