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THE 
 
 LAW AND PRACTICE 
 
 KEG;UI.ATING THE DISPOSITION OP 
 
 SURPLUS MONEYS 
 
 FROM THE SALE OF LANDS 
 
 Mortgage Foreclosures, 
 
 APPENDIX OF PRECEDENTS, 
 
 INCLUDING THE PRACTICE UPON OEDEES OF EEFERENCE, AND THE 
 
 EEVIEW THEEEOF, UPON EXCEPTIONS, AS 
 
 APPLIED TO SUCH CASES. 
 
 By JOHN H. COLBY, 
 
 COUNSELOR- AT-LAW, 
 
 AUTHOR OF "OOLBY'S CRIMINAL LAW^. \^f)i '^ 
 
 
 
 V 
 
 BANKS & BROTHERS, LAW PUBLISHERS, 
 
 NEW YORK : No. 144 NASSAU STREET, 
 
 ALBANY, N.Y. : 473 AND 475 BEOADWAT. 
 
 1878. 
 

 Entered according to Act oi' Congress, in the year one thousand eight hundred and 
 
 seventy-eight, 
 
 By JOHN H. COLBY, 
 In the office of the Librarian of Congress, at Washington. 
 
 The vast Benthuj-sbn Pkinting HotisB, 
 
 Trinters, Stereotypcrs and Binders, 
 
 Albany and Caslleton, N . T. 
 
TABLE OF CONTENTS. 
 
 PAGE. 
 
 Surplus Moneys akising on Mortgagb Fobeoloscrbs 1 
 
 § 1. Report of sale not to be confirmed unless accompanied with vouchers for 
 
 surplus moneys, etc 5 
 
 § 2. Surplus moneys, how disposed of by the officer making the sale of the 
 
 mortg-aged lands 5 
 
 § 3. Filing notice of claim to the surplus moneys 6 
 
 § 4. Who entitled to notice of application for the order of reference 7 
 
 § 5. Of the application for the surplus by a motion for an order of reference . . 7 
 
 § 6. Order of reference 10 
 
 § 7. Of the referee's summons and service thereof 11 
 
 J 8. Proceedings upon the reference 15 
 
 § 9. Report of the referee in regard to the surplus moneys 21 
 
 § 10. Motion to confirm the referee's report , 25 
 
 § 11. Proceedings subsequent to the referee's report, where no exceptions are 
 
 filed 26 
 
 § 12. Referee's report, how reviewed ' 28 
 
 § 13. Of the making and filing exceptions to the referee's report 30 
 
 § 14. Noticing the exceptions for hearing 33 
 
 § 15. Hearing and argument of exceptions 34 
 
 } 16. Decisions on argument of exceptions, and decision thereon 35 
 
 § 17. Final order for distribution of the surplus moneys 36 
 
 § 18. Of the costs of the proceedings on claims for surplus moneys 38 
 
 § 19. Power of the refei'ee to inquire into the validity of the liens upon the 
 
 surplus , 39 
 
 § 20. The liens must be absolute liens, as distinguished from equitable claims 
 
 not matured into liens 42 
 
 § 21. The inchoate rights of mechanics and matei-ial men under the statutes, 
 
 where the lien is not established by judgment 43 
 
 § 22. What are liens upon the surplus, and the order of prigrity in their pay^ 
 
 ment 44 
 
iv TABLE OF CONTENTS. 
 
 PAGE. 
 
 § 23. Of the widow's dower in the surplus moneys 51 
 
 J 24. The inchoate rig-ht of dower also follows the surplus moneys 54 
 
 § 25. Of the investment of thewidow's dower in the surplus, and of paying- her 
 
 a gross sum in lieu of an annual income 55 
 
 § 26. Of the interest of a lessee for years in the sui-plus moneys 56 
 
 § 27. The heir or devisee entitled to the surplus in preference to an adminis- 
 trator 59 
 
 } 28. Of the payment of the surplus funds to the surrogate in cases where the 
 
 mortgagor is dead 60 
 
 § 29. Of the disposition of the surplus funds arising upon the foreclosure of 
 
 mortgages by advertisement 65 
 
 § 30. The surplus moneys not having been.appled foi-, when to be invested.. .. 70 
 
SXJM'LTJS m:onji;ys 
 
 ARISING ON SALE OP LANDS 
 
 MORTGAGE FORECLOSURES. 
 
 The surplus moneys arising upon sales of land under a final deci-ee 
 in foreclosure belong to the parties who had estates or interests in 
 the land sold, which were cut ofi^ by the sale. The real estate 
 having been converted into money, the several parties are entitled 
 to be paid out of the fund the equivalent of their respective interests 
 in the order of their priorities as between each other. (Clarkson v. 
 ■Skidmore, 46 N. Y. 301.) 
 
 Previous to the Constitution of 1846, the former Court of Chan- 
 cery in this State exercised control and jurisdiction over the fore- 
 closure of mortgages which had been brought by a bill in equity 
 in that court, and also over the proceedings subsequent to a sale of 
 the mortgaged lauds, which were had in regard to the control and 
 disposition of the surplus moneys arising on such foreclosure. 
 Under the rules of the Court of Chancery, the proper preliminary 
 inquiries for the purpose of ascertaining to whom the surplus 
 moneys belonged, and how they should be distributed, were 
 intrusted to a master in chancery, whose duties and functions, in 
 our present Supreme Court, are now discharged by a referee. The 
 Constitution of 1846 having abolished the office of chancellor and 
 
2 SURPLUS MONEYS IN 
 
 his court, ana the present Supreme Court having been created to fill 
 its place, with general jurisdictiou in law and equity, the judiciary- 
 act of 1847 was passed by the Legislature to carry into practical 
 operation the radical changes which had been made by the new 
 Constitution ; and, as will be seen, when a discussion is had of -the 
 matters hereafter spoken of, reference should be had not only to the 
 Code of Civil Procedure, regulating the practice in a civil action, and 
 to the present rules of practice of the courts for information upon 
 those subjects, but, in many instances, recourse must be had to the 
 practice as it formerly existed in the Court of Chancery, and as 
 governed and regulated by its rules ; and it will be found that 
 nany important points of the present practice, iu regard to the 
 cnatters hereinafter treated of, are still governed and regulated by 
 the rules of the late Court of Chancery. (Code of Procedure 
 § 469 ; Rule of Court No. 91 ; 22 Barb. 319, et post.)* 
 
 Although the proceedings upon references of this nature are 
 after final judgment, and are had subsequent to the final report of 
 sale, yet the practice will be found to be substantially the same as 
 references upon interlocutory orders before final judgment, under 
 the practice in the late Court of Chancery, subject to the present 
 rules of court, and will be so treated in the following pages. 
 
 The proceedings upon interlocutory orders of reference, which is 
 deemed to be the practice regulating orders of reference in regard 
 to surplus funds in mortgage cases, although the orders are i-eally 
 made after final judgment, is perhaps governed more by the former 
 chancery practice than any other proceedings taken in a civil action 
 as known under the Code of Civil Procedure. These interlocutory 
 remedies are as much essential for the administration of justice under 
 the present system of practice as under the former ; the more 
 especially so in actions for equitable relief ; and the Code and pres- 
 ent rules of practice having failed to provide the necessary details 
 of practice in these respects for our guidance, it becomes necessary 
 that the former chancery practice should be resorted to in these pai*- 
 
 * Note — Sec. 469 of the Code of Procedure was not repealed by the new Code. 
 Vide chap. 417, Laws of 1877, § 4. 
 
MORTGAGE FORECLOSURES. 3 
 
 ticulars. This liberty is sanctioned and fully allowed, first, by the 
 legislative authority of § 469 of the Code of Procedure, that the rules 
 and practice of the courts in civil actions, when consistent with the 
 Code, shall continue in force, .subject to the power of the courts to re- 
 lax, modify, or alter the same ; and, second, by Rule 91 of the courts, 
 directing that wh^re no provision is made by statute or the rules, 
 the proceedings shall be according to the customary practice as it 
 has heretofore existed in the Court of Chancery and Supreme Court. 
 
 It is proposed in the following pages to lay down the existing 
 practice and law in this State iu regard to applications to the coui't 
 for the surplus moneys arising upon the sale of land under a final 
 decree in actions brought for the foreclosure of mortgages, including 
 also surplus moneys which arise upon a sale of land under statutory 
 advertisement, and obtaining a. proper distribution of such moneys 
 among the several persons, entitled to the same. 
 
 The Revised Statutes (2 R: S. 192, § 159, 6th ed. ; R. S. vol. 3, 
 p. 199), provides that the proceeds of every sale made under the 
 decree of a Court of Chancery shall be applied to the discharge of 
 the debt adjudged to be due, and of the costs awarded, and if there 
 shall be any surplus it shall be brought into court for the use of the 
 defendant or the person who may be entitled tnereto, subject to the 
 order of the court. 
 
 The' Judiciary Act, chap. 280, Laws of 1847, § 16, provided 
 that the present Supreme Court shall possess the same powers and 
 exercise the same jurisdiction as was possessed and exercised by the 
 former Supreme Court and Court of Chancery, and that all laws 
 relating to the late Court of Chancery shall be applicable to the 
 present Supreme Court, so far as the same can be applied, and are 
 consistent with the Constitution and the provisions of the Judiciary 
 Act. * 
 
 * Note — ^This section of the judiciary act was repealed by the repealing act (chap. 
 417, Laws 1877), but the same jurisdiction and authority has been preserved by 
 section 469 (unrepealed) of the Code, and the rule of the court above referi'ed to. 
 Section 217 of the Code of Civil Procedure of 1877 further prescribes that the general 
 jurisdiction in law and equity, which the Supreme Court of this State possesses ' 
 under the provisions of the Constitution, includes all the jurisdiction which was 
 
4 ^ SUliPLUS MONEYS IN 
 
 The rules of the old Court of Chancery provided for the primary 
 disposition of surplus moneys arising upon the sale of mortgaged 
 lands under a decree of foreclosure in said court, and for the ascer- 
 taining to whom the same belonged and for the distribution thereof, 
 and the rules of the present Supreme Court (Rules 64 and 68) 
 contain similar provisions regulating the present practice in that 
 respect. 
 
 The Supreme Court (Mutual Life Ins. Co. v. Bpwenf 47 Barb. 
 618) have held that a foreclosure suit cannot be said to have termi- 
 nated until the surplus moneys have been disposed of in that suit. 
 The court has not only the power, but it is its duty in that action to 
 provide for the equitable distribution or disposition of the surplus 
 moneys. 
 
 The present rule of the courts in relation to aisplicatious for sur- 
 plus moneys arising upon the sale of lands under mortgage fore- 
 closures is similar to the former chancery rule (136), and is as follows : > 
 
 RULE 68. 
 On filing the report of sale, any party to the suit, or any person 
 who had a lieu on the mortgaged premises at the time of the sale, 
 upon filing with the clerk where the report of sale is filed a notice 
 stating that he is entitled to such surplus moneys, or some part 
 thei-eof, and the nature and extent of his claim, may have an order 
 of reference to ascertain and report the amount due to him or to 
 any other person, which is a lien upon such sui-plus moneys, and to 
 ascertain the priorities of the sfeveral liens thereon, to the end that 
 on the coming in and confirmation of the report on such reference, 
 such further order may be made for the distribution of such surplus 
 moneys as may be just. The referee shall in all cases be selected by 
 the court. The owner of the equity of redemption, and every party 
 who appeared in the cause, or who shall have filed such notice with 
 
 possessed and exercised by the Supreme Coui-t of the colony of New York at any 
 time, and by the Court of Chancery in Eng-land, on the 4th day of July, 1776, with 
 the exceptions, additions,, and limitations created and imposed by the Constitution 
 and laws of this State. Subject to these exceptions and limitations, the Supreme 
 Court of the State has all the powers and authority of each of those courts, and 
 exercises the same in like manner. 
 
MORTGAGE FORECLOSUEES. 5 
 
 the clerk previous to the entry of the order of reference, shall be 
 entitled to service of a notice of the application for the reference, and 
 to attend on such reference and to the usual notices of subsequent 
 proceedings relative to such surplus. But if such claimant has not 
 appeared or made his claim by an attorney of this court, the notice 
 may be served by putting the same into the post-office, directed to 
 the claimant, at his place of residence as stated in the notice of his 
 claim. All official searches for conveyances or incumbrances, made 
 in the progress of the cause, shall be filed with the judgment roll, 
 and notice of the hearing shall be given to any person having, or 
 appearing to have, an unsatisfied lieu on the moneys in such manner 
 as the court shall direct, and the party moving for the reference 
 shall show by affidavit what unsatisfied liens appear by such official 
 searches, and whether any and what other unsatisfied liens are 
 known to him to exist. 
 
 Sec. 1. Report of sale not to be coufirmed unless accompanied -with vouch- 
 ers for surplus moneys, etc. 
 
 No report of sale shall be filed or confirmed, unless accompanied 
 with a proper voucher fpv the surplus moneys, and showing that 
 they have been paid over, deposited, or disposed of in pursuance of 
 th'e judgment. (Supreme Court Rule No. 64.) 
 
 Sec. 2. Surplus moneys, ho'w disposed of by the officer making the sale of 
 the mortgaged lands. 
 
 Rule 64 of the Supreme Court provides, that all moneys arising 
 from the sale of mortgaged premises, under any judgment, shall be 
 paid by the sheriff or referee making the sale, within five days after 
 the same shall be received and ascertainable, in the city of New 
 York, to the chamberlain of said city, and in other counties, to the 
 treasurer thereof, imless otherwise specially directed, subject to the 
 further order of the court; and every judgment in foreclosure 
 shall contain such directions, except where other provisions are 
 specially made by the court. 
 
 The direction contained in the decree of sale, is generally as 
 follows : " And it is further adjudged that the said referee (or sheriff) 
 
G SUKPLU8 MONEYS IN 
 
 pay the surplus money arising upon said salo, if any there be, 
 within five days after tlie same sliall bo received and ascertainable 
 (in the city of New York), to the chamberlain of the city of New 
 
 York, and (in other counties) to the treasurer of the county of , 
 
 subject to the further order of this court, and that he take a receipt 
 therefor, and file the same with, his report." 
 
 It is the practice with some attorneys, in lieu of the foregoing 
 IJrovision, to take a special direction of the court in the decree of 
 sale, that the referee or sherifi" retain the surplus moneys arising 
 upon the sale of the mortgaged lands in his hands, subject to the 
 tiirtlier order of the court ; and sometimes a clause is inserted, that 
 instead of paying the surplus to the county treasurer, the officer 
 making the sale is directed to deposit the same in some bank named 
 in the decree therein, to remain on deposit, and await the subse- 
 quent order of the court in regard to its disposition. About the 
 only advantage to be gained by sul:)stituting the above provisions in 
 regard to the disposition of the surplus, is to save the commissions 
 of the county treasurer for receiving and disbursing the money./ 
 
 Sec. 3. Filing notice of claim to the surplus moneys. 
 
 The court rule (68) provides for the filing of a notice of claim to 
 the surplus moneys or some part thereof. The notice of claim may 
 be filed at the time of filing the report of sale, or at any subsequent 
 time. A restriction is made in filing the notice of c'laim to the sui-- 
 plus moneys, to a party to the suit, or any pei-son who has' a lien on 
 the mortgaged premises at the time of sale. The notice is to be 
 filed with the clerk where the report of sale is filed ; the notice should 
 state that the claimant is entitled to such surplus moneys, or some 
 part thereof, and the nature and extent of his claim, and upon such 
 notice being so filed, the claimant may have an order of reference 
 in the manner provided by and for the purpose prescribed iii the 
 rule. (Idem.) 
 
 The filing of the notice above provided for, is the inititatory' step 
 to be taken by the applicant for the purpose of obtaining his inter- 
 est in the surplus moneys, under a final order of distribution thereof 
 to be made by the court. 
 
MORTGAGE FORECLOSURES. 7 
 
 The plaintiff has the same right to present and establish a claim 
 to the surplus moneys, as a defendant in a foreclosure suit, or any 
 other person, and he is not required to establish beforehand, all the 
 claims he may have on the mortgaged premises. (Field v. Hawxhurst, 
 9 How. Pr. R. 75.) 
 
 That the lien which entitles a person to file his notice of claim, 
 and make application for an order of reference, must be an absolute 
 lieu, which subjects the estate to be sold under execution, without 
 further intervention of the court. {Yide post, § 19, entitled " Power 
 of the Referee to enquite into the validity of the liens upon the sur- 
 plus.") 
 
 Sec. 10, of chap. 342, Laws of 1840, provides that any person claim- 
 ing any right or equity of redemption, by or under any decree sub- 
 sequent to any mortgage, who is not made a party to the suit, may 
 make application to the court, by petition or motion, for any surplus 
 .moneys arising from the sale, in the same manner as if he were a 
 party to the suit. 
 
 Sec. 4. Who entitled to notice of application for the order of reference. 
 
 The owner of the equity of redemption, and every party who ap- 
 peared in the cause, or who shall have filed such notice (i e., notice of 
 claim to surplus moneys) with the clerk, previous to the entry of the 
 order of reference, shall be entitled to service of a notice of the applica- 
 tion for the reference, and to attend on such reference, and to the usual 
 notices of subsequent proceedings relative to such surplus. Sup. Ct. 
 Rule 68). The same rule also requires that notice shall be given to 
 any person having or appearing to have an unsatisfied lien on the 
 moneys, in such manner as the court shall direct. 
 
 Sec. '5. Of the application for the surplus by a motion for an order of 
 reference. 
 
 Mr. Van Santvoord, .in his Equity Practice, vol. I, page, 547, says 
 that the claimant, having filed with the clerk the statement of his 
 claim, may serve, upon the parties entitled thereto, a simple notice 
 of eight days of the application referring, to the statement on file, 
 
6 SUKPLUti MONEYS IN 
 
 and without serving any copy of such statement, and that under the 
 former chanceiy rule, the order of reference in these cases was an 
 order of course, but it is believed to be now the almost general 
 practice to prepare an affidavit as the basis of the motion upon the 
 order of reference, stating therein the facts necessary to be shown 
 to entitle the applicant to the order, and to serve copies of the 
 affidavit with the notice the same as motion papers are prepared and 
 served in other special motions. 
 
 Among other facts proper to be stated in the affidavit upon which 
 the motion for the oi'der of reference is based, are the following : 
 That the action was brought for the foreclosure of a mortgage on 
 real property, the date and place of filing thfe judgment I'oll ; that a 
 sale of the mortgaged lauds has been had under the decree of sale ; 
 that the plaintiff's claim has been paid ; that there remains a sui'plus, 
 stating the amount and where and with whom deposited ; that the 
 applicant has a claim on the surplus, or some part thereof, stating 
 briefly the nature and amount of the claim ; that the report of sale 
 has been filed ; that the apjjlicant's lien on the surplus moneys 
 existed at the time of the sale, or that he is a party the suit. It 
 is usual to annex to the affidavit a copy of the applicant's written 
 notice of claim to the surplus, which he has filed with the clerk, 
 and also a certificate of the clerk showing what parties have entered 
 an appearance in the action, and the persons who have filed with 
 the clerk any notice claiming to be entitled to the surplus moneys 
 arising upon the sale under the decree. The affidavit should also 
 state what unsatisfied liens appear by the official searches used in 
 the progress of the cause (these searches should be found filed with 
 the judgment roll), and whether any and what other unsatisfied liens 
 arc known by the moving party to exist (Rule 68). lu case any 
 persons, having unsatisfied liens or entitled to subsequent notice of 
 the proceedings before the referee, are non-residents, or their places 
 of abode are unknown, and cannot, after reasonable diligence and 
 enquiry, be ascertained, those facts should also be stated in the 
 affidavit used on the motion for the reference, so that a proper 
 dTection may be inserted in the order of reference directiusi the 
 
MORTGAGE FORECLOSURES. 9 
 
 referee as to the mode in which he shall cause liis summons to be 
 served for such parties ta attend upon the hearhig before him. 
 
 In regard to tlie service of the motion papers for tlie reference, 
 this rule (GS) provides that where a claimant has not appeared or 
 made his claim by an attorney of the court, the same may be served 
 by putting the same into the post-office directed to the claimant at 
 his place of residence as stated in the notice of his claim. 
 
 It is considered that, where a party to the cause has duly appeared 
 during its progress by ail attorney of the court, and such tact appears 
 from the judgment roll on file, and in cases where a claimant has 
 caused his notice of claim to be signed and filed by an attorney of 
 the court, that service of the motion papers may be made upon such 
 attorney in the same manner that other motion papers are served. 
 
 In I'egard to a party or claimant who has neither appeared by 
 attorney or caused his notice of claim to be made by attorney, or 
 who has neglected to state his place of residence in the notice of 
 claim, or to therein specify the premises or place in which service is 
 to be made upon him, the motion papers should be either served 
 upon him personally, or left at his residence at suitable hours, with 
 a person of suitable age and discretion, in the same manner that the 
 Code prescribes for serving papers at the residence of an attorney in 
 case the attorney's office is closed and he cannot be lound. 
 
 But if the party or claimant, or pei'son having an unsatisfied lien, 
 has neither appeared in the action, or stated his place of residence 
 in his notice of claim, and he is either a non-resident or his place of 
 lesidence cannot, after due diligence and inquiry, be ascertained, an 
 ex parte affidavit, showing these facts, should be presented, and an 
 order obtained directing the service of the motion papers to be 
 made in such manner as the court shall direct (see Rule 68), either 
 by mail, in case of a non-resident whose resid'enee is known, or by 
 publication or otherwise, where his residence is unknown, and can- 
 not, after the exercise of due diligence, be ascertained. 
 
 To the affidavit should be annexed a notice of motion, directed to 
 the owner of the equity of redemption, and to the several persons 
 named in the affidavit, who have entered appearances in the action, 
 or filed notice of claims to the surplus, and stating the time aud place. 
 
10 SURPLUS MONEYS IN 
 
 at a special term, when the application will be made for an order of 
 reference to ascertain and report ,the amount due the claimant, or 
 any other person, which is a lien upon the surplus moneys, and as to 
 the priorities of the sevei'al liens thereon, and as for such other relief 
 iis may be just. 
 
 It is proper, although not in all cases necessary, to state in the 
 notice of motion that, in addition to the affidavit, a copy whereof 
 is served with the notice, that the motion will also bj made upon 
 the judgment roll and referee's report of sale, and other papers in 
 the action, which are on file with the clerk, and these papers may 
 be read and used on the motion if deemed necessary. 
 
 The motion should be noticed for and made at a special term 
 (Rule 38), and the general regulation of the Code, in regard to the 
 place where motions are to be made, governs applications of this 
 nature. 
 
 Sec 6. Order of reference. 
 
 The motion papers having been duly served, and an application 
 having been made and heard at a special term for an order of 
 reference in regard to the surplus moneys, the order, if granted by 
 the court, is drawn and entered in the usual form, with the clerk 
 of the county where the judgment roll and referee's report of sale 
 are filed. (Rule 2.) If the order is made at a special term held in 
 a county different from that in which the judgment roll is filed, the 
 clerk of the special term should make an endorsement thereon, sta1>- 
 ing that the same was granted at that special term, and directing 
 thp county in which the same is to be entered. - 
 
 All the papere used on the motion should be specified in the 
 order, and filed with the clerk, or the same may be set aside as 
 irregular. (Rule 3.) The prevailing party should enter the order 
 with the clerk of the county where the papers are filed (Savage v. 
 Relyea, 3 How. 276) ; and if the order is liot entered within twenty- 
 four hours, any party interested iuay . enter it (Whitney v. Belden, 
 4 Paige, 140 ; siee 5 Paige, 83). The papers should be filed and 
 the order entered in the proper county within ten days after the 
 
MORTGAGE FOEECLOSUEES. 11 
 
 granting of the same, or in defiiiilt thereof, it is provided by Eule 3 
 of the court, that the order may be set aside as irrcgul.ir with 
 costs. (See Sage v. Mosher, 17 How. 3G7.) 
 
 The order of reference in terms directs the referee to ascertain 
 and report the amount due to the applicant, or to any other person, 
 which is a lien upon such surphis , moneys, and to ascertain the 
 priorities of the several liens thereon. 
 
 A certified copy of the order of refei'ence should be procured and 
 delivered to the referee for his guidance upon the reference. 
 
 In case of non-residents who have unsatisfied liens upon the 
 surplus, or of claimants who have not made their claim by an 
 attorney of the court, and whose residence is unknown, it is proper 
 to have a direction inserted in the order directing the manner in 
 which the referee's summons should be served upon them. 
 
 The referee may be. changed after the order has been made and 
 entered, but this need not be done except on very special occasions, 
 such as the incapacity of the referee from illness to attend to the 
 business, or other cause of an urgent nature sufiicient to justify the 
 removal. (1 Barb, Ch. Pr. 471.) So also an unreasonable delay on 
 the part of the referee in proceeding with the reference, or granting 
 an adjournment for an unreasonable time, against the wish of one of 
 the parties, was good cause for substituting another referee, with 
 directions to proceed with the reference. (Forrest v. Forrest, 3 
 Bosw. 650.) 
 
 It was held in the Court of Chancery that a complainant who sets 
 up both a mortgage and a subsequent judgment lien held by him, 
 may, on the consent of such junior incumbrancers as are parties, have 
 payment of the judgment out of the surplus without a reference. 
 (Wheeler v. Van Bureu, 1 Barb. Ch. 490.) 
 
 Sec. 7. Of the referee's summons and service thereof 
 
 The order of reference having been delivered to the I'eferee, he 
 assigns a time and place for the hearing before him, and proceeds 
 to summon before him on such reference, all persons who have 
 appeared in the cause, or who have filed a notice with the clerk 
 
12 SURPLUS MONEYS IN 
 
 previous to the order of reference, stating that he is entitled to such 
 surplus moneys or some part thereof, and he should also summon 
 before him all other persons who have, or appear to have, an un- 
 satisfied lien upon the surplus appearing, either from the official 
 searches, or from the affidavit used by the moving party cm the 
 reference, or from any other source of knowledge brought to the 
 attention of the referee. (Court Rule 68.) 
 
 By the former practice the jDarties interested in the subject-matter 
 of the reference, were, in all cases, brought before the master by 
 means of a summons or warrant. The summons was a paper en- 
 titled in the cause, and signed by the master, appointing a tinie and 
 place for the parties concerned to attend him, and containing, by 
 means of an underwriting or memorandum, a general statement of 
 the subject of the reference. A direction wa^ endoiBed upon it by 
 the master, stating the length of time that the summons should be 
 served on the advei'se party. Service upon the party was not 
 necessary, but personal service upon the solicitor was sufficient, even 
 for the purpose of bringing the party into contempt for disobeying 
 the summons. (1 Barb. Ch. Pr. 472 ; Merritt v. Anon., 7 Paige, 
 151 ; 1 ,Van Sant.' Eq. Pr. 525.) 
 
 This practice is still considered proper, although it is quite com- 
 mon for a party prosecuting a reference to obtain from the referee a 
 simple appointment of the time and place, and thereupon to serve 
 an ordinary notice of hearing upon the parties interested, and in 
 case of their failure to attend, to proceed with the reference ex parte. 
 (Van Sant. Eq..Pr. 525.) 
 
 The Revised Statutes (2 R. S. 402, § 67. 6th ed. ; R. S. vol. 3, 
 p. 664) provide that in all cases where, by the provisions of law, 
 any judge or other officer is authorized to summon any person to 
 appear as a witness, either before such judge or officer, to give testi- 
 mony, or have his commission taken, or before any person named 
 in any commission issued by a court of any other State or county 
 to take testimony, such summons shall be served by : 1. Showing to 
 the witness the original summons under the hand of the judo-e or 
 officer issuing the same. 2. Delivering to such witness a copy of 
 
MOETGAGE FORECLOSUKES. 13 
 
 « 
 
 the summons or a ticket containing its substance, and, 3. Paying 
 or tendering to such witness the fees allowed by law for traveling to 
 and returning from the place where he is required to attend, and the 
 fee allowed for one day's attendance. 
 
 Every person who shall be duly summoned to attend before any 
 judge or officer, or before any commissioner as above provided, shall 
 be bound to attend according to such summons, and for every 
 failure so to attend without a reasonable excuse, shall be responsible 
 to the party aggrieved for the loss and hindrance sustained by such 
 failure, and for all other damages sustained thereby, and shall forfeit 
 to such aggrieved party fifty dollars in addition to such damages- 
 (lb. ^ 68.) 
 
 In case of the failure of any witness so to attend as above pro- 
 vided, the judge or officer issuing the summons, upon due proof of 
 the service thereof, and of the failure of such witness, shall issue his 
 warrant to the sheriff of the county, to appi'ehend such witness and 
 bring him before such judge or officer to be examined. (lb. 69. 
 See 1 Rob. 613 ; 7 id. 456 ; 1 Bos. 614 ; 2 Sandf. 679 ; 31 How. 
 Pr. R. 193 ; 16 Abb. 6 ; 2 Ab. 83.) 
 
 Every warrant to apprehend any witness under the above provi- 
 sions of the Revised Statutes, shall be directed to ,the sherifi" of the 
 county where such witness may be, and shall be executed by him in 
 the same manner as process issued by courts of record. (2 R. S. 
 402, § 72.)* 
 
 * Note. — The above cited provisions of the Revised Statutes, to wit : sections 67, 
 68, 69, 72 (old sections 44, 45, 46), have been repealed by the repealing act (chap. 
 417 of the Laws of 1877), and the present sections of the Code of 1877, viz. : sec- 
 tions 854, 855 and 856, substituted in their place, condensing and consolidating the 
 same, apd using the word subpoena instead of summons. But inasmuch as the 
 former chancei-y practice was by summons instead of subpoena, and as stated in 
 the text, the practice of the old Court of Chancei-y is still supposed to govern in 
 regard to these interlocutoiy orders, the old provisions of the Kevised Statutes 
 have been allowed to remain in the text. The provisions of the new Code, sections 
 854, 855 and 856, are substantially those of the Revised Statutes using the word 
 subpoena for summons. 
 
 It will, lurwevie); be observed that the concluding sentence of section 854 of the iiew 
 Code of Civil Procedure, which provides for the issuing of the s^ibpoena, and which is 
 a substitute for section 67 of the Revised Statutes, declares that such section (Code, 
 § 854) does not apply to a matter arising or an act to be done in an action in a court 
 of record. 
 
14 SURPLUS MONEYS IN 
 
 111 cases where parties have appeared in the action hy their attor- 
 neys, the names of the attorneys appearing for them can l>e easily 
 ascertained from an inspection of the judgment roll, and in like manner 
 the names of claimants upon the suiplus money, and in most cases 
 their residence and the names of their attorneys can also be ascer- 
 tained from the inspection of the notices of claim on file with the 
 clerk ; and the attorney for the party prosecuting the claim should 
 furnish the names and residences of these persons to the referee, to 
 enable him to issue a simimoiis, and see that the same is properly 
 served. The attorney for the moving party is now required, under 
 the amendment to Eule 68, to state in his affidavit used upon the 
 motion for the reference, what unsatisfied liens appear by the official 
 searches, and also what other unsatisfied liens are known to him to 
 exist. The names and residence of the persons holding these liens 
 should also be furnished the referee, that service of the summons, or 
 notice of the hearing before the referee, may. in like manner be served 
 upon them. In many cases, especially of unsatisfied liens, where the 
 party holding the lien has neither entered an appearance as a party 
 in the action, or filed notice of any claim to the surplus, it will be 
 found extremely difficult to ascertain where the person resides, or to 
 obtain personal service of a summons or notice of hearing upon 
 him. The rule above mentioned provides, in regard to the service 
 of the notice of application for the order of reference, that where a 
 claimant has not appeared or made his claim by an attorney of the 
 court, the notice may be served' by putting the same into the p.ost- 
 office, directed to the claimant at his place of residence, as stated in 
 his notice of claim ; and farther, that notice of the hearing shall be 
 given to any person having, or appearing to have, an unsatisfied lien 
 on the moneys, in such manner as the court shall direct ; and it is 
 presumed, that in cases where personal service of the summons for 
 attendance before the referee cannot be obtained, that the above pro- 
 visions of the rule would equally apply, even to the service of the 
 summons by publication. 
 
 In cases where such a course would become necessaiy, a motion 
 should be made, and an order of the court obtained, directing the 
 method of service. The most expeditious method of proceeding in 
 
MORTGAGE FORECLOSUEES. 15 
 
 such cases, is for the attorney to state in his motion papers for the 
 order of reference, the names of peisons (having, or appearing to 
 have, unsatisfied liens on the surplus, parties who have entered 
 appearance, and claimants), who are non-residents, or whose residence 
 is unknown, and obtain in the order of reference, a specific direction, 
 by publication or otherwise, of the manner in which the referee is to 
 cause his summons to be served upon, and notice given to such per- 
 sons of the time and place of reference. 
 
 In regard to the length of time to be given by the referee for the 
 hearing before him, it is usually sufficient, to enable the party pros- 
 ecuting the reference, to give the ordinary notice of eight days, 
 unless the other parties in interest are brought, before the referee by 
 summons, when it may be for a shorter time. The rules regulating 
 the former practice required not less than two days when the solici- 
 tor of the adverse party resided in the place where the hearing wat 
 to be had, and not less than four days when he resided elsewhere 
 not exceeding fifty miles from the place of hearing, nor less than six 
 days if over fifty and not exceeding one hundred miles, and when 
 he resided more than one hundred miles from the place of hearing 
 not less than eight days, unless a shorter time was fixed in the order 
 of reference. (Chanceiy Rule 100 ; Van Sant. Eq. Pr. 524.) 
 
 Under the former practice it was held irregular for the master to 
 issue a summons or proceed with the reference until the order was 
 actually entered and an authenticated copy brought into his office. 
 (Quackenbush v. Leonard, 10 Paige, 131.) IJnder the present 
 practice the certified copy of the order of i-eference is delivered to 
 and left with the referee for his use, but it is frequently omitted in 
 practice until the hearing. 
 
 Sec. 8. Proceedings upon the Reference. 
 
 The referee, in orders of this natui'e, is a substitute for the former 
 maater of chancery under the old chancery practice. Bj' the pro- 
 visions of the Judiciary Act (Laws of 1847, chap. 280, § 77), the 
 duties of that officer weie to be discharged by a person to be 
 appointed a referee by the court. The Code of Civil Procedure and 
 
16 SURPLUS MONEYS IN 
 
 the rules of the court do not prescribe the general powers of the 
 referee acting' upon orders of this kind. Section 1018 of the Code 
 applies only to the trial of issues. The referee being a substitute 
 foi- a master in chancery, he must conform to the rules and practice 
 of that court so far as applicable under the Code, and not modified 
 or changed by the present rules of the courts. (Judiciary Act, chap. 
 280, Laws of 1847 ; Palmer v. Palmer, 13 How. 363 ; Ketchman v. 
 Clark, 22 Barb. 31t) ; Graves v. Blanchard, 4 How. 303 ; Van 
 Zandt V. Cobb, 10 How. 348.) The general powers and duties of 
 such referees, therefore, not being prescribed by the court, or by 
 the rules of court, are the same as those possessed by a master in 
 chancery while proceeding in the execution of a decretal order. 
 That part of the former practice, or at least so much of it as is not 
 inconsistent with the Code, is still in force, and will be so considered 
 in its application to such references. (Ibid ; 1 Van Sant. Eq. Pr. 
 523 ; idem. pp. 21 et 22, and cases cited.) 
 
 The usual practice at the commencement of the hearing is to 
 produce to the referee a certified copy of the order of reference, and 
 administer the usual oath to the referee. The certificate of the clerk 
 should then be produced, showing what parties have entered an 
 appearance in the action, and what persons have filed a notice with 
 the clerk claiming to be entitled to the surplus moneys, or some part 
 thereof, and a certified copy of the official searches filed with the . 
 judgment roll should also be produced before the referee. In case 
 no official searches were filed with the roll, a clerk?s search against 
 the mortgaged lands sold under the decree should be furnished the 
 referee. The original affidavit used on the motion for the order of 
 reference should also be produced, that the referee may see what 
 other unsatisfied liens, if any, exist, other than those appearing on 
 the search. The referee's summons for attendance on the reference, 
 with proof of service, should then be examined by the referee, in 
 order to see that all necessary and proper parties have been sum- 
 moned before him. The amount of the surplus moneys, and the 
 name and official description of the person holding the same, with 
 the date of its deposit, should be shown. Where the moneys arc 
 
MORTGAi&E FOEECLOSURES. 17 
 
 iir the hands of the county treasurer, or other public officer, his 
 official certificate, showing these facts, is ordinarily received as evi- 
 dence. In cases where the money is in the custody of a bank, the 
 cashier or teller is usually subpoenaed as a witness to prove that fact. 
 The fact of the original deposit might be shown by the referee's 
 report of sale, with the receipt for the moneys attached, but that 
 would not be conclusive evidence that the moneys still remained in 
 the custody of the person or bank with whom it had been placed. 
 The referee should then proceed to examine the claimants upon oath 
 in regard to whether their liens wei'e still existing claims, and to the 
 amount due upon them. The production of the judgment roll, 
 containing the complaint and decree, will often materially aid the 
 referee in determining the questions before him. 
 
 Under the practice of the old Court of Chancery, in this respect, 
 it was held, in Hurlburt v. McKay, 8 Paige Ch. E. 651, that upon 
 a reference to a master to ascertain the rights to the surplus moneys 
 on a sale of mortgaged premises, under the provisions of the 136th 
 rule of the Court ef Chancery, the party prosecuting the reference 
 must produce before the master the certificate of the i-egister or clerk 
 with whom the report is filed, and the surplus money deposited, 
 showing that no notice of claim to such surplus was annexed to the 
 report of sale, and that no claim to the same has been filed previous 
 to the entry of the order of reference, or if claims have been filed, 
 stating the names of the claimants and of their solicitors, if any, 
 and their places of residence ; . and before the master proceeds 
 to make his report as to such surplus moneys, he should ascer- 
 tain by the proper certificate and other evidence, that all claimants 
 and otherproper parties have been notified or summoned to attend 
 before him on such i"eference. And the fact that such certificate 
 and evidence were produced before him, should be stated in the 
 reiDort. 
 
 An incumbrancer who has neglected to file a notice of his claim 
 
 upon the surplus moneys, as prescribed by the 136th rule (Chancery), 
 
 may go before the msister pending the reference as to such surplus, 
 
 and file his claim with him, duly verified, and he will theii be 
 
 2 
 
18 SUEPLUS MONEYS IN 
 
 entitled to be heard upon the reference as to the validity of such 
 claim, upon such equitable terms as to costs as the master shall 
 direct. (Idem.) 
 
 Parties and other claimants, upon a reference to a master to ascer- 
 tain the rights to the surplus moneys upon a mortgage sale, must 
 /verify their claims in the same manner as creditors coming in under 
 a decree are required to do, and the master may examine the claim- 
 1 ants upon oath touching their respective claims. (Idem.) 
 
 In De Euyter v. St. Peter's Church, 2 Barb. Ch. 555, it was said 
 that where a person has an equitable lien upon the surplus moneys, 
 and an order of reference has been entered by some other person 
 before he is aware of his rights, he should then go before the master 
 upon the reference and present and establish his claim there. And 
 when he neglects to do so, without any excuse, the court will not 
 settle his right to such surplus moneys upon petition. 
 
 In Hurlburt v. McKay, 8 Paige, 651, cited above, it was held 
 proper for the referee to require a claimant to swear to the justice of 
 his claim, and the amount actually due upon it, and by Rule 30 of 
 the courts, the testimony of the witnesses is also required to be 
 signed by them. 
 
 In regard to the compelling the attendance of parties and wit- 
 nesses before the referee, for the purpose of testifying, it has been here- 
 tofore mentioned, that since the abolition of the fonuer Court of 
 Chancery, the practice upon this class of references has been common 
 of serving an ordinary notice of hearing upon the respective attor- 
 neys of the different parties, instead of notifying the parties to attend 
 by the service of a summons. The service of the notice of hearing 
 upon the attorneys will not be suflScient, where the evidence of the 
 parties, or any of .them, is required upon the hearing before the 
 referee. In such cases, they cannot be compelled to attend by (he 
 process of subpcena, but a summons must be served. By the former 
 practice, if the party neglected to attend or refused to put in his 
 examination, an application was made to the court, by a motioji, for 
 an order that he be compelled to put in his examination by a speci- 
 tied time, or that an attachment issue. . (1 Dan. Pr. 820 ; 1 Barb. 
 Ch. Pr. 491 ; 1 Van Sant. Eq. Pr. 528.) 
 
MORTGAGE FORECLOSURES. 19 
 
 Instead, however, of resorting to the old practice of procuring an 
 order compelling the party to put in his examination, the pereonal 
 attendance of a party may be enforced by the issuing of a summons 
 by the referee, to be followed by a warrant to apprehend the party, 
 and bring him before the referee to be examined, in the manner 
 pointed out by the Revised Statutes. (2 R. S. 402, § 67 et § 70. 
 Vide 6 7, entitled " Of the referee's summons and service thereof," 
 page — , ante, and 7iote to the same.) 
 
 In making the above remarks, it is considered that § 390 of the 
 former Code of Procedure, authorizing the examination of a party 
 to an action, and therein providing for his compulsory attendance, in 
 the same manner as any other witness, did not apply to a reference 
 of this nature. (See Huelm v. Ridner, 2 Abb. Pr. R. 19.) It is 
 also assumed that the provisions of the Code of Civil Procedure, in 
 regard to attachments against witnesses, and their punishment for 
 contempt, are not applicable to references of this nature, and apply 
 only to trials before referees. 
 
 Under the provisions of the rules of the former Court of Chan- 
 cery (Rule 76), process to compel the attendance of witnesses issued 
 of course, and if the witness failed to attend and submit to an examin- 
 ation, he was liable to be punished for a contempt. Witnesses, other 
 than parties, and even parties themselves, may still be subpoenaed to 
 attend before the referee in the same manner as upon a trial, and this 
 is a very common coui-se of proceeding. Disobedience to such sub- 
 poena, as has been noticed, will not authorize the referee to issue the 
 statutory warrant to bring the witnesses before him to testify ; he 
 must first issue his summons, or if that course be preferred in case 
 of dis6bedience, a motion to the court may be made to attach the 
 witness and punish him for contempt. (1 Van Saut. Eq. Pr. 529 ; 
 ' Vide Bleeckcr v. Carroll, 2 Abb. 82, et Green v. Wood, note ; 6 
 Abb. 284.) 
 
 If any witness attending before any judge, officer, or commis- 
 sioner, or brought before them or either of them, shall, without rea- 
 sonable cause, refuse to be examined or to answer any legal and 
 pertinent question, or to subscribe his deposition after the same has 
 been reduced to writing, the officer issuing such summons shall by 
 
20 SURPLUS MONEYS IN 
 
 wiinaiit commit such witness to the common jail of the county ni 
 which he resides, there to remain until he submits to be examined, 
 or to answer, or to subscribe his deposition, as the case may be, or 
 uutil he be discharged according to law. (2 R. S. 402, § 70, 6th ed., 
 R. S. vol.' 3, p. 664.) The warrant of commitment shall specify- 
 therein particularly the cause of such commitment, and if such 
 conmiitment be for refusing to answer any question, such question 
 shall be stated in the warrant (id. § 71), and the warrant is to be 
 directed to the sheriff of the county where such witness may be, and 
 is to be executed by the sheriff in the same manner a;s process issued 
 by courts of record. (lb. § 72.)* 
 
 In regard to the production of books and papers, the proper 
 mode of proceeding in such cases would be for the referee to issue 
 his summons td the party or witness in the usual form, with an 
 underwriting as in the former practice, to the following effect : "At 
 which time and place you are required to produce before me all 
 such deeds, books, and papers as are in your custody or power, 
 relating to the matters referred to me." Should any particular 
 document or paper be required, it should be specified in the under- 
 writing. (1 Barb. Ch. Pr. 481 ; 1 Van S. Eq. Pr. 530.) 
 
 The general proceedings before the referee are similar to those 
 pursued on the trial of the cause. The witnesses are examined viva 
 voce and not upon written interrogatories. The parties are at liberty 
 to make use of all the proceedings which are of record in the cs.use 
 in the nature of evidence, such as depositions taken in the cause, 
 on commission, etc., or the pleadings, but the pleadings can be made 
 use of only for the t^ame purposes as before the court, nainely, 
 as admissions, aud not as evidence for or against any other party. 
 (Idem. 493 ; ib. 531 ; Smith v. Alters, 11 Ves. 564.) 
 
 The examination having been completed, it is read over to the 
 witness, who may make any corrections he thinks proper, and is 
 then signed by him, the referee adding thereto^^his jurat in the 
 usual form. 
 
 * Note— See preceding note and §§ 854, 855, 856, Code of Civil Procedure of 1877. 
 
MORTGAGE FORECLOSURES. 21 
 
 The party who makes the application to the court, and obtains 
 the order of reference, is, in the first instance, entitled to its prose- 
 cution. There seems nothing in this rule inconsistent with the 
 present practice, as there is no provision made authorizing an 
 adverse party to notice the motion for hearing, and take the default 
 of the party prosecuting the reference. (1 Van S. Eq. Pr. 526 ; 
 1 Barb. Ch. Pr. 474.) Should the party entitled to prosecute the 
 order neglect to do so, the practice established in Chancery, it is 
 thought, may also be properly pursued ; that is, if he did not pro- 
 cure and serve the summons within thirty days after the entry of 
 the order, any other party or person interested in the matter of the 
 reference was at liberty to apply to the court by motion or petition, 
 to expedite the proceedings, and on such motion have the prosecu- 
 tion of the reference committed to him. (Chancery Rule 191 ; 1 
 Van S. Eq. Pr. 526 ; Quackenbush v. Learned, 10 Paige, ,131.)' Or 
 if the party neglected to prosecute the reference with due diligence 
 after the proceedings were commenced, by the service of the sum- 
 mons, the master was at liberty, upon the application of any other 
 person interested, either as a partj' to the suit or as coming in to 
 prove his debt, or establish a claim under the or^er, to commit to 
 him the prosecution of the reference. In this case, notice was required 
 to be given to the complainant's solicitor, of the application to the 
 master, and of the papers on which it was founded, or the party so ap- 
 plying should deliver to the master the evidence of the complainant's 
 neglect, and procure a summons for the adverse party, underwritten, 
 to show cause why the prosecution of the order should not be 
 taken from him and submitted to the applicant. (1 Van S. Eq. Pr. 
 526 ; Chancery Rule, 191 ; Quackenbush v. Leonard, 10 Paige, 131 ; 
 Holley V. Grover, 9 Paige, 7.) 
 
 Sec. 9. Report of the referee in regard to surplus moneys. 
 
 The referee having determined the amount of the several liens 
 taken before him, and their priorities, and the order in which they 
 are entitled to be paid, must report the facts to the court. It is not 
 necessary to return the evidence taken before the referee, but if 
 
22 SUEPLUS MONEYS IN 
 
 exceptions to the report are taken and filed, a copy of the evidence 
 may be obtained from the referee, if uecessaiy for use on the argu- 
 ment, as in other cases. (2 Van Sant. Pr. 104 ; 1 Crary Sp. Pro. 
 324.) 
 
 The above practice in regard to not requiring the evidence to be 
 returned by" the referee, is laid down by Mr. Crary in his practice,," 
 citing Van Santvoord's practice as authority for the same, but by 
 the present 30th rule of the courts, it is provided that in references 
 other than for the trial of the issues in the action, or for computing 
 the amount due in foreclosure cases, the report of the referee shall 
 be filed with the testimony. 
 
 Under the late practice in the Court of Chancery, upon a reference 
 to a master to ascertain who are entitled to the surplus moneys 
 brought into court in a foreclosure suit, it was held that the report 
 on its face should show that all persons entitled to attend upon the 
 reference were duly summoned. The report should also state what 
 persons did appear before the master upon such reference, and if 
 they did not assent to the report, such report must be filed aud duly 
 confirmed in the register's (now clerk's) ofiice before an application 
 could be made to the court for the payment of the surplus moneys 
 m conformity with the decision of the master. Upon a reference as 
 to surplus moneys, the master should ascertain the amount of such 
 surplus, and state, it in his report, and if the party obtaining the 
 reference is not entitled to the whole of such moneys, the master 
 should ascertain and report who is entitled to the residue, so that 
 upon the coming in of the report an order may be made disposing 
 of the whole of the funds in court. Prima facie the mortgagor or 
 the persons who are stated in the bill to be the owners of the equity 
 of redemption, are entitled to the surplus moneys brought into 
 court under a decree of sale in a foreclosure suit. And if no person 
 attends before the ma^ster and>produces evidence of a better right, 
 the master should report that the surplus moneys or the balance 
 thereof remaining unclaimed, belong to the persons thus prima fade 
 entitled to the same. (Fraiiklin v. Van Cott, 11 Paige, 129; see 
 3 N. Y. Leg. Obs. 162.) 
 
 The report commences with the title of the cause, and is addressed 
 
MOKTGAGE FORECLOSUKES. 23 
 
 to the court in which the order of reference was granted. It refers 
 to the order of reference by its date, and may recite the substance 
 of the directions contained in it. , 
 
 The testimony of the witnesses should be signed by them and 
 attached to the report as a schedule. 
 
 Mr. Van Suntvoord, in his Equity Practice, Vol. I, page 563, 
 makes the following observations in regard to the practice to be 
 pursued by the referee in making and signing his report. It is 
 believed to be the usual practice at present, in ordinary cases, at 
 least, tor the referee, after the testimony is closed and the case finally 
 submitted, to draw up and sign his report and deliver it to the pre- 
 vailing party without pursuing the mode of settlement 'and hearing 
 objections, which was practiced before a master in chancery at the 
 time the Code went into effect. And, this mode of procedure, it is 
 thought, is proper, at least until objected to. The referee, however, 
 if he choose, may, no doubt, follow the former chancery practice as 
 regulated by the 109th chancery rule. The cases, since the Code, 
 above alluded to, seem to I'ecognize that, as well as the other chan- 
 cery rules on the subject of this kind of reference as still in exist- 
 ence. (Ketchum v. Clark, 22 Barb. 319 ; Palmer v. Palmer, 13 
 How. 363.) The rule provides that when the master (referee) has 
 prepared his draft of the report, he shall deliver copies thereof to 
 su(5h of the parties as apply for the same, and shall assign a time 
 and place for the parties to bring in objections, and for settling the 
 draft of the" report, and shall issue his warrant for' that purpose, and 
 that no summons to see the draft of the report and take copies 
 thereof shall be necessary. On the return of the warrant, or on 
 such other day as may then be assigned by the master "(referee) for 
 that purpose, if objections are filed by either party, he may proceed 
 to hear the parties on such objections, and the master (referee) shall 
 settle and sign his report, and cause it to be filed in the proper 
 office within twenty days after the argument on such objections is 
 closed. If no objections are made to the draft, the master (referee) 
 shall sign his report and file it in the proper office within ten days 
 after the time assigned for bringing in the objections. 
 
24 SUEPLUS MONEYS IN 
 
 If it be desired by either party that this course be pursued, the 
 referee should so be informed at the close of the hearing, or at least 
 before his report is actually delivered to the prevailing party. 
 Either party then, on examining the draft of the report, may bring 
 in his objections on the day assigned, stating that some evidence has 
 been misunderstood, some facts not found, or improperly found, or 
 that some ii-regularity or error is apparent on the face of the report, 
 or whatever other objections he may have to the finding or the sub- 
 stance of the report. 
 
 The objections are the ground-work of the exceptions to be ulti- 
 mately filed against the report ; so much so that if the exceptions 
 go beyond the objections, or assign matter not comprised in them, 
 they will so far be deemed irregular and overruled.. (1 Barb. Ch. 
 Pr. 547.) 
 
 After hearing the parties upon their objections, the referee, if he 
 thinks proper, may modify or alter his draft accordingly, and may 
 then make and sign his report ; and, if he thinks fit, file it himself 
 in the proper clerk's office, according to the provisions of the former 
 chancery rule, though it is believed, as above intimated, that the 
 customary practice now is for him to deliver it to the prevailing 
 party, or party prosecuting the reference, on receiving his fees, who 
 thereupon files it and gives notice thereof to the>opposite parties, 
 according to the provisions of the 30th rule of court. 
 
 See Ketchum v. Clark, 22 Barb. 319, for details of practice in 
 regard to above practice and filing objections to the re/eree's draft 
 report, and ^u■gument upon exceptions thereto. 
 
 It was held at special tei-m in 1858 (Evertsen v. Given, 16 How. 
 Pr. K. 25), that a formal exception to a referee's report, under an 
 interlocutory decree, is not necessary. 
 
 The 108th rule of the late Court of Chancery, which existed 
 when the Code took effect was, by the decision in Ketchum v. Clark, 
 supra, held to be still applicable. This rule provided that in all 
 matters referred to a master (referee), he should be at liberty, upon 
 the application of any party interested, to make a separate report or 
 reports, from time to time, as he shall deem expedient, the costs of 
 such reports to be in the discretion of the court. The cases, how- 
 
MOETGAGE FORECLOSUEES. 25 
 
 c'vci-, under the present practice, where separate reports have been 
 made, have been confined to ctises where the whole iissue has been 
 referred to, leaving other matters, such as an accounting, etc., for a ■ 
 further and final report. Mr. Van Santvoord (1 Van Saht. Eq. Pr. 
 561) s:iy.- that no r^ase to his knowledge, has been reported inider 
 the new system, illustrating the practice of making a separate report 
 upon a mere interlocutory order of reference. Such practice, how- 
 ever, ill a proper case, may be still resorted to (though it cannot 
 often be necessaiy), under the present system, as under the former. 
 In case avi exigency should arise, where a separate rieport should 
 become necessary, the general report should shortls' allude to the 
 date and particulars of it, so that the court may see that all the 
 enquiries directed by the order have been in some way disposed of. 
 (1 Barb. Gh. Pr. 548.) 
 
 Sec. 10. Motion to confirm the referee's report. 
 
 Upon the coming in and filing of the report by the referee, an 
 order confirming the same should be entered. The consideration of 
 this subject divides itself into two cases: first, where there are no 
 exceptions filed to the report within the eight days prescribed by the 
 court rule, in which cases, by the terras of the rule (30), the report 
 becomes al)solute, and stands in all things confirmed. It is consid- 
 ered the better practice, even in cases like this, to enter with the 
 clerk a formal order of confirmutiou. For the practice, in a case like 
 the one above mentioned (see section W, post, entitled "Proceedings 
 subsequent to the referee's report "), when no exceptions have been 
 filed. 
 
 The other case is where exceptions have been filed and served to 
 the report, in which case they must first be disposed 'of by the court, 
 before an order confirming the report can be entered. For this 
 subject, see section 16, post, entitled "Decision on argument of the 
 exceptions and proceedings thereon." 
 
 Justice Birdseye, in Husted v. Dakin, 17 Abb. Pr. E. 148, G. T. 
 1857, speaking of the power to enquire into the validity of liens 
 upon the surplus moneys arising upon foreclosure sales, upon a 
 
26 SURPLUS MONEYS IN 
 
 motion lo coiiti. Ill the referee's report, says, nor whea the referee 
 has made his report, and a motion is made for its confirmation, and 
 'for distribution of the surplus according to its findings, can the 
 justice or regularity of the liens be examined upon the evidence 
 taken before the referee. The court would perhaps have the power 
 to make an order ih regard to many of the usual objections to 
 such liens on such a motion, but I think we should not do so col- 
 laterally, but only on applications made directly for that purpose, 
 on a sufficient notice, in which the defects, irregularities, or frauds 
 shall be specifically pointed out. 
 
 Sec. 11. Proceedings subsequent to the referee's report, where no excep- 
 tions are filed. 
 
 The report of the referee should be filed with the testimony 
 (Rule 30), a note of the day of filing should be entered by the clerk, 
 in the proper book, under the title of the cause or proceeding 
 (idem.), and notice should be given of the tiling of the report to 
 all of the parties who appeared before the retieree (Rule 68). A 
 copy of the report should be served with the notice of the filing of 
 the same. If no exceptions are filed and served within eight days 
 after serving notice of the filing of the referee's report, the report 
 becomes absolute and stands as in all things confirmed. (Rule 30.) 
 
 Mr. Crary and the late Mr. Van Santvoord, in their works upon 
 practice (2 Van Sant. Pr. 104 ; 1 Cr. Sp. Pr. 324), both recommend 
 in such cases to obtain an order of confirmation, to be used on the 
 motion for the further order of distribution. But if this is not 
 done, the certificate of the clerk that no exceptions 'have been filed 
 withiu the time fixed by the rule (thus showing that the report 
 stands confirmed), should be produced on the application for the 
 further order of distribution. (lb.) 
 
 . In cases where no exceptions are filed or served, and that fact 
 appears by the certificate of the clerk, it is usual to embrace in the 
 find order for the distribution of the surplus money, a formal .clause 
 ordering and directing that the referee's report be, and that the 
 same is absolute, and in all things confirmed, without the necessity 
 
MOETGAGE FOKECLOSUKES. 27 
 
 of taking an intermediate order of confirmation prior to ihi order 
 of distribution. 
 
 The party filing the report may, at the time he serves notice of 
 its filing, also at th& same time serve notice of an application for an 
 order to confirm the same, and for distribution of the surplus, and 
 if no exceptions are filed and served within eight days thereafter, 
 take both orders in one. The notices of application to confirm the 
 report and for distribution of the surplus, may both be contained in 
 the same paper. In case exceptions to the report should be filed 
 and served, they will be brought to a hearing as hereinafter men- 
 tioned. 
 
 Under the practice in the former Court of Chancery, it was held 
 that where it appeared from the master's report that the proctediugs 
 upon the reference as to surplus moneys were entirely ex parte, so 
 that no person has a right to except to the report, the entry of an 
 order nisi to confirm the report may be dispensed with, and the 
 special order to confirm the report, and to pay over the surplus 
 moneys according to the report may be entered together. But in 
 all other cases an order nisi to confirm the report must be first entered, 
 and a certificate of the register or clerk that such order has become 
 absolute, must be produced upon the application to the court for an 
 order to pay out such surplus moneys according to the report. 
 (Hurlburt v. McKay, 8 Paige, 652.) 
 
 Mr. Crary (Voi; 1, Cr. Sp. Pr. 324), citing Hurlburt v. McKay, 
 supra, et Edw. on Kef. 297, 301, says, if there is a single claimant 
 entitled to the whole surplus, so that no others would have the right 
 to except, the order of confirmation and for the payment of the 
 surplus may be entered together and without notice. 
 
 In Ketchura v. Clark, 22 Barb. 31it, G. T. 1856, E. Darwin 
 Smith, J., speaking of a reference to take an account between the 
 parties, said : This reference is the reference of the old courts of 
 equity, such as was always made to a master. The practice in chan- 
 cery in such cases was for the master to prepare a draft of ihis 
 report and deliver it to such parties as desired it, and for the parties 
 then to come in and tile objections to such draft, and after argument 
 thereupon the master made his final report. To this report either 
 
28 SURPLUS MONEYS IN 
 
 partj' who had filed objections could take exceptions based on such 
 objections. (See old Chancery Rules 109, 110; Barb. Ch. Pr. 
 547.) These exceptions could be brought on before the court for 
 argument, and nothing else came up in the accounts for review or 
 examination. The report of the master was final and conclusive 
 upon all parties in respect to all such matters after the expiration of 
 the order nisi. That practice, so far as it relates to references like 
 the one in this case, is still in force in respect to proceedings before 
 referees. Section 469 of the Code and the present rule of the court 
 expressly retain all the customary practice in chauceiy as it had 
 heretofore existed in the Court of Chancery. In cases not provided 
 for in some statute or other rule, no objection having been taken in 
 this case before the referee, and no exceptions taken to his report, 
 both parties are concluded by it, and neither is entitled to raise any 
 question in respect 1o the details of the account oh the hearing of 
 the cause. In this view of the rule applicable to such cases, there 
 is nothing before the court for review. 
 
 Sec. 12. Referee's report, hovr reviewed. 
 
 The method of obtaining a review of the report* of the referee is 
 not by appeal. The party aggrieved, who desires a review of the 
 report, proceeds under the 30th rule of the court by filing excep- 
 tions to the report, in the same manner as under the practice of the 
 former Court of Chancerj'. The only way to obtain a review of the 
 referee's report, in the first instance, is by the means of exceptions filed 
 and served and bi-ought to argument on notice at special term, and 
 heard upon the report of the referee, the exceptions thereto and the 
 testimony taken by the referee, which, bythie rule (30), is to be filed 
 with the report. The practice will be pointed out below of making 
 and filing exceptions and obtaining a review of the report previous 
 to the order confirniing the same, and also of obtaining an order of 
 confirmation of the report, in cases where no exceptions are made 
 and filed. 
 
 The provisions of the Code of Civil Procedure, prescribing the 
 form of the report of a referee, and how it may be excepted and 
 
MOETGAGE FORECLOSUEES. 29 
 
 reviewed upon appeal therefrom, is applicable only to a trial refer- 
 ence. No provision is made by the Code for the review of an 
 interlocutory reference on a decretal order like these proceedings, 
 except the general provision of Rule 30 of the courts, allowing such 
 reports to be excepted to within eight days after notice of filing and 
 exceptions, brought to a hearing at special term. 
 
 Rulp 91 of the courts provides that in cases where no provision is 
 made by statute or by these rules (the rules of the courts), the 
 proceedings shall be according to the customary practice, as it has 
 heretofore existed in the Court of Chancery and Supreme Court, in 
 cases not provided for by statute or the written rules of the court ; 
 and it is to be considered that when the practice is not well defined, 
 w'c are to look to the rules of the late Court of Chancery for 
 enlightenment upon this subject. In fact, it has been held that such 
 "customary chancery practice," including even the printed rules of 
 the court on this subject, is still applicable. (Ketchum v. Clark, 22 
 Barb. 319 ; see also Van Sant. Eq. Pr. vol. 1, p. 22, and cases 
 therein cited.) 
 
 The Code of Procedure has also found it necessary to also provide 
 generally for the application of the rules of the former practice in 
 cases not provided for by the new. Thus, § 469 of the Code provides 
 that ' ' the present rules and practice of the court in civil actions, 
 inconsistent with this act, are abrogated, but when consistent with 
 this act, they shall continue in force, subject to the power of the 
 respective courts to relax, modify or alter the same." 
 
 This provision of the Code, taken with the present court rule. 
 No. 9 1, above referred to, show that where the Code and the present 
 rules of the courts are silent on the subject, the rules of the old 
 Court of Chancery in these equitable proceedings, are to govern the 
 present pi'actice. (See Wiggins v. Gaus, 4 Sand. 646 ; Palmer v. 
 Palmer et al., 13 How. 363 ; Ketchum v. Clark, 22 Barb. 319.) 
 
 And it was said by Mitchell; J., in Wilcox v. Wilcox, 4 Kernan, 
 580, that " the Code lays down certain rules of practice and pleadino-, 
 and so far as those rules extend, it is absolute, but in cases left 
 unprovided for by the Code, the courts are left to their former prac- 
 tices for their jruide." 
 
30 SUEPLUS MONEYS IN 
 
 < 
 
 This is understood, however, as subject to the provisions of the 
 present rules of practice of the courts. 
 
 Under the former practice the court would sometimes direct the 
 master (referee) to review his report without requiring exceptions 
 to be taken, or if taken will direct it to be reviewed upon other 
 grounds than those covered by the exceptions. (2 Dan. Ch. Pr. 
 961 ; 1 Barb. Ch. Pr. 556.) This may sometimes be done on 
 motion, as where there has been some omission or error in the 
 report which would prevent the matter from being properly raised 
 by exceptions (Anon. 3 Mad. 246) ; or it may be in the hearing for 
 final distribution, as where the court is not satisfied with the referee's 
 findings, or he has not found sufficient tacts for the court to make a 
 final order upon. (Turner v. Turner, 1 Swanst. 146.) And it is 
 presumed that the practice above cited in this respect still exists. 
 (1 Van S. Eq. Pr. 565.) 
 
 The report is not properly reviewable on exceptions on the ground 
 of mere irregularity in the proceedings before the referee, but a 
 motion to coirect the irregularity or to set aside the report and 
 refer it back is the appropriate remedy. (Tyler v. Simmons, 6 Paige, 
 127.) And if the objections to the report are not apparent upon its 
 face, the court, when the report is made in a special proceeding, 
 will entertain a petition to refer it back to the referee to be reviewed. 
 (2 Dan. Ch. Pr. 961; 1 Barb. Ch. P;-. 556.) 
 
 Sec. 13. Of the mciking and filing exceptions to the referee's report 
 
 If tor any reason any of the parties who appeared before the 
 referee are dissatisfied with his report, the proper course for them to 
 pursue, to obtain relief, is to make . and file with the clerk ,with 
 whom the referee has filed his rei)ort, exceptions to such report. 
 The exceptions should be filed with the clerk and a copy served 
 upon the opposite parties within eight days after service of the 
 notice of filing the i-eferee's report. (Rules of Court No. 30.) 
 
 If a party neglects to except to a referee's report for eight days 
 after notice of the filing, it becomes absolute under Rule 30, though 
 it be defective on its face. (Colton v. Colton, 2 Hun, 378, G. 
 T. 1874.) . 
 
MORTGAGE FORECLOSURES. 31 
 
 The exceptions should be specific in their nature ; general excep- 
 tions will not answer. (See 47 N. Y. 443.) 
 
 Exceptions to the refusal of a referee to find additional facts will 
 not lie. A party deeming it necessary that the referee shall pass 
 'upon additional questions of fact, must move for an order sending 
 back the report, with instructions to add findings upon such ques- 
 tions. (Rogers v. Wheeler 52 N. Y. 262 ; 52 id. 28 ; 50 id. 665 ; 
 46 id. 259 ; 65 Barb. 32). 
 
 Any party interested in the matter in question, may except to the 
 report, and where there are several sets of parties, appearing by dif- 
 ferent attorneys, if not disposed to join, they may each take excep- 
 tions, although their grounds of exceptions are the same. (Edw. on 
 Ref. 301 ; 1 Van Sant. Eq. Pr. 105 ; 1 Barb. Ch. Pr. 553 ; 2 Dan. 
 Ch. Pr. 943, 953). The above includes creditors who have estab- 
 lished claims befoie the referee, and persons whose claims have been 
 disallowed. (Idem.) 
 
 Mr. Van Santvoord, in his Equity Practice, vol. 1, page 567 et 
 sequiter, commenting upon the method of taking exceptions to a ref- 
 eree's report on a decretal order, in the form of the same, makes the 
 following observations: "By the former practice, mxich care was 
 required in preparing the exception, so that they might point out 
 the precise objection, and raise the particular question which the 
 party designed to review. They were in the nature of special de- 
 murrers, and the objecting party must point out the error, ptherwise 
 the part not objected to would be taken as admitted. (Wilkes v. 
 Rogers, 6 John. 566.) And where one general exception was taken 
 to a report, including several distinct matters, and the report 
 appeared right in any one instance, the exceptions would be over- 
 ruled. (Franklin V. Hunt, 4 Paige, 382 ; Chandler v. Pettit, 1 Paige, 
 427 ; 1 Barb. Ch. Pr. 552.) In a special term ea^fe (Evertson v. 
 Given, 16 How. 25), however, exceptions to the report were considered 
 merely as points of counsel upon which the argument against the 
 report was to be founded, and there being specific objections to the 
 evidence on the hearing, it was deemed nnneccssaiy to repeat them 
 at any other time, or indeed, to file any exceptions at all. This case 
 was decided just before the amendment to the. rule which requires 
 
32 SURPLUS MONEYS IN 
 
 such reports of a referee to be filed, and makes them absolute unless 
 exceptions thereto are filed and served within eight days after service 
 of notice of filing the same, thus bringing back the former chancery 
 practice, and the above decision is therefore perhaps no longer ap- 
 plicable, except so far as it indicates that the former practice of carry-' 
 iag in foifiial objections to the draft of the master's (referee's) report 
 is abolished. It is enough if the objections be taken on the hearing 
 II and entered by the referee in his minutes, as in case of a trial before- 
 him, and after notice of filing the report specific exceptions be filed 
 and served within the eight days, and substantially in the form of 
 the chancery practice. It is to be observed, however, that this is 
 altogether a matter of practice, and perhaps of discretionary prac- 
 tice, and though exceptions are absolutely necessary to be filed, if 
 the party desire to raise his objection (otherwise, by the rule, the 
 report stands confirmed without motion or further order), yet if he 
 file a mere general exception or exceptions, not sufficiently specific, 
 the court may no doubt, if it choose, review the whole report upon 
 the referee's conclusions of law and fact; such indeed, was the course 
 in some cases, even under the former practice. 
 
 The safest course to be pursued, is for the party filing the excep- 
 tions to the referee's report, to make them specific in their nature, 
 pointing out 'with accuracy the precise grounds upon which the 
 report of the referee is excepted to. There can then be no question 
 as to what matter is presented to the court ujDon the hearing of the 
 exceptions, and no objection can be taken to the exceptions that 
 they fail to point out the errors complained of, and that the 
 adverse party has not been properly notified of the grounds of error 
 urged against the confirmation of the report. It has been held on 
 an exception to a master's report in regard J:o the manner of com- 
 puting interest, that such exception, instead of merely stating that 
 the master has not adopted the usual or legal mode, should indicate 
 in what manner the interest should be computed, so that if the 
 exception is allowed, the master will know in what manner to cor- 
 rect the report. (1 Barb. Ch. Pr. 551, citing matter of Crittenden 
 in Chancery, 1842.) 
 
MOETGAGE FORECLOSUEES. 33 
 
 Exceptions may be taken to any erroneous ruling of the referee, 
 upon matters of law upon the proceedings before him, either in the 
 erroneous admiasion or rejection of testimony, or the like, and they 
 may also be taken to findings of fact. (1 Van Sant. Eq. Pr. 566, 
 567.) It is not a proper ground of exception, that the referee has 
 omitted to point out the .legal consequences, for the court will act 
 upon the facts reported, where they are so clearly stated as neces- 
 sarily to involve a particular consequence. (Bick v. Motley, 2 My. 
 and Keen, 312.) Nor was it under the former practice deemed 
 necessary to except to an erroneous conclusion arrived at by the 
 master (referee), as to the legal conclusions of the facts, where the facts 
 themselves are correctly stated, as this question may be opened and 
 decided by the court, on the argument upon farther directions 
 without exceptions. (Adams v. Claxton, 6 Ves. 226.) 
 
 In Matthews tJ. Duryea, 4 Keys, 525, Court of Appeals, 1868, 
 the question presented to the court was in regard to the widow's 
 dower in surplus funds arising from sales under decrees of fore- 
 closure ; the court there held that an exception to the finding of the 
 amount of dower interest due to the widow in the surplus, after 
 foreclosure and sale of her husband's estate, without indicating in 
 what respect the same was erroneous, presented no legal proposition 
 to the court for review. The above-mentioned exception was, how- 
 ever, made to the judges' finding upon the trial of the action at law, 
 and not to a referee's report made under the rule of court. 
 
 Sec. 14. ifoticing the exceptions for hearing. 
 
 If exceptions are filed and served within the eight days after 
 service of notice of the filing of the referee's report, the same may 
 be brought to a hearing, at any special term thereafter, on the 
 notice of any party interested therein. (Court Rule 30.) If the 
 party excepting bring on the hearing, the notice thereof may be 
 served at the same time with a copy of the exceptions. 
 
 If the party filing the report is satisfied with it and desires to 
 move for its confirmation, he may give notice of such motion 
 immediately on filing the report, and at the same time serve notice 
 3 
 
34 SUEPLUS MONEYS IN 
 
 of filing thereof, and such notices may both be embraced in the 
 same paper. If any adverse party wishes to except, he must do so 
 within eight days thereafter, and the moving party may then 
 immediately notice the exceptions for hearing at the same time and 
 place with the motion for confirmation of the report, if he has suf- 
 ficient time to do so, and if not, may serve a new notice either to 
 bring on the exceptions separately, or the exceptions and notice of 
 motion to confirm the referee's report together. 
 
 The moving party may, if he see fit, serve a notice for the final 
 hearing of the matter and for an order of distribution of the sur- 
 plus, to be heard at the same time and place with the hearing of 
 the exceptions and of thd application for the order .to confirm the 
 refei'ee's report. 
 
 Mr. Van Santvoord (1 Van Sant. Eq. Pr. 570) says : The practice 
 above indicated, of bringing on the exceptions and final hearing of 
 the matter, upon further directions, together, was sanctioned and 
 adopted in the New York Supreme Court at special term in a 
 recent case (Forrest v. Forrest, vide note to Van Sant. Eq. Pr. vol. I, 
 p. 570), and such, it is believed, is the practice in the Supreme 
 Court. (See Gregory v. Campbell, 16 How. 417.) The plaintifl:" 
 may, however, undoubtedly, if he prefer, move the exceptions for 
 argument, separately, and before bringing to a final hearing upon 
 further directions. 
 
 Sec. 15. Hearing and argument of exceptions. 
 
 On such hearing, the party excepting must furnish the court with 
 the proper papers, copies of the report, exceptions and pleadings. 
 (1 Van Sant. Eq. Pr. 571 ; 1 Barb. Ch. Pr. 192-564.) 
 
 Mr. Van Santvoord, in his Equity Practice, vol. I, 571, says: If 
 the testimony be not annexed to or returned with the report, under 
 the order of the court, and the party excepting desire to review 
 some questions arising upon the evidence before the referee, or, 
 indeed, either party desire to use such evidence on the argument of 
 the exceptions, copies of such evidence, duly certified, must be 
 obtained from the referee, and may be used oju the hearino-. Such 
 
MORTGAGE FORECLOSURES. 35 
 
 was the former practice (1 HoflF. Ch. Pr. 545 ; 1 Barb. Ch. Pr. 549), 
 and has been followed since the Code. {In re Merritt, trustee, etc., 
 cited in 1 Van Sant. Eq. Pr. 566, note.) 
 
 The rules of court, No. 30, now require the testimony to be filed 
 with the report. 
 
 Affidavits, which are taken subsequent to the report, cannot be 
 read upon the argument of the exceptions, nor any evidence not 
 read before the referee. Under the former practice, this rule pre- 
 cluded the reading of any part of the defendant's answer which 
 was not read in the master's office. (Hedges v. Cardounel, 2 Atk. 
 408 ; 1 Barb. Ch. P. 534.) 
 
 The above rule is now, no doubt, changed in this resi^ect, the 
 present answer being a pleading merely, and the chancery answer 
 serving the double purpose of a pleading and of evidence. (1 Van 
 Sant. Eq. Pr. 572.) 
 
 In Gregory v. Campbell, S. T. 1858, 16 How. Pr. R. 417, that 
 where exceptions have been taken and motion for a final hearing is 
 brought on, with exceptions to the referee's report, that the court 
 Avill not only look to the pleadings, but will receive any other 
 evidence in its discretion, and will consider any stipulations oflFered, 
 and of admissions of the parties, "or of other persons, presented to it 
 on the hearing. 
 
 Sec. 16. Decision on argument of the exceptions and proceedings 
 thereon. 
 
 If the exceptions are overruled, it has all the effect of confirming 
 , the report absolutely, and if there has been a motion noticed for an 
 order for final distribution of the surplus moneys, to come on at the 
 same time with the hearing of the. exceptions to the referee's report, 
 the court proceeds at once to hear the motion for final distribution 
 and make the proper order thereon. 
 
 If the exceptions, or any of them, are allowed, the court may set 
 aside the report and refer the matter back to the referee, to proceed 
 therein de novo under proper instructions, or may refer it to a new 
 referee. In such case an order is entered to that effect, which order 
 should contain a clause to continue the reservation of the order for 
 
36 SURPLUS MONEYS IN 
 
 distribution and of the costs of the proceedings until the coming in 
 of the new report. (1 Van Sant. Eq. Pr. 572.) 
 
 Upon the allowance of an exception, it is sometimes unnecessary 
 to send the report back for a review ; for instance, the court may- 
 modify 'the report upon the hearing, and when this has been done, 
 the hearing, upon the motion for distribution of the surplus, may 
 be proceeded with, and a final order made upon the report, as 
 modified, in the same manner as if the exceptions had been over- 
 ruled. {Idem, et 1 Barb. Ch. Pr. 555) 
 
 Or, if the court think proper, it may, before deciding the excep- 
 tions, send the report back to be corrected, by supplying some 
 defect or ascertaining some fact which may be necessary to enable 
 the court to come to a proper conclusion. In such cases, the court 
 usimlly adjourns the consideration of the exceptions, or of the par- 
 ticular exceptions in questions, until after the referee shall have 
 made the supplemental report. (2 Dan. Gh. Pr. 960 ; 1 Barb. Ch. 
 Pr. 535 ; 1 Van Sant. Eq. Pr. 573.) 
 
 Sec. 17. Final order for distribution of the surplus moneys. 
 
 The application for the order of distribution (at least when there 
 are contesting or other claimants) must be made on notice at special 
 term, and cannot be made until the report has become absolute and 
 stands confirmed. If there be a single claimant entitled to the whole 
 surplus, so that no person would have a right to except, the order of 
 confirmation and for the. payment of the surplus may be made 
 together and without notice. (Edw. on Eef. 297, 301 ; Beekman 
 V. Gibbs, 8 Paige, 511 ; 2 Van S. Eq. Pr. 104 ; 1 Cr. Sp. P. 324.) 
 
 The order establishes the several liens and their priorities, and 
 directs the order of payment, together with the payment of costs 
 when allowed, fixing the amount. 
 
 A certified copy of the order authorizing the payment, counter- 
 signed by the justice by whom the order was made, must be 
 produced to the treasurer or other person or bank having the money, 
 in order to obtain payment thereof. (Court Rule 75.) 
 
 As above stated, when the report has been filed and notice of the 
 filing duly served, and eight days have elapsed without any excep- 
 
MOETGAGE FORECLOSURES. 37 
 
 tions to the report having been filed and served, and that fact appears 
 by the certificate, of the clerk, the motion for the order of confirma- 
 tion of the report and for the distribution of the surplus may both 
 be embraced in one notice, and the two orders combined in one 
 order. 
 
 As previously remarked, the party who has made the application 
 for the reference, may notice a motion for confirmation of the report 
 and for final distribution immediately upon filing the report of the 
 referee, without waiting eight days to see whether exceptions will be 
 filed or not, and the notice of hearing may be served with and 
 embraced in the notice of filing the report, and he may so bring on 
 the hearing, though he himself have excepted to the report. If 
 exceptions be filed within the time, the final hearing and exceptions 
 may be noticed together by either ^arty, the rule, of coiirse, pro- 
 viding that any party interested may bring the exceptions to argu- 
 ment. The former practice was, that where exceptions were taken 
 by either party, the complainant might apply by a petition, of course, 
 tnat the cause might be set down for further directions and costs, and 
 might come on to be heard together with the exceptions. But this, 
 under the present practice, seems to be unnecessary. The proper 
 mode is, no doubt, to bring them to a hearing together on a simple 
 notice. (Dixon v. Olmius, 1 Ves. Jr. 153 ; Yeo v. Frere, 5 Ves. 
 424; 1 Barb. Ch. Pr. 560; 2 Smith Pr. 361 ; 1 Van S. Eq. Pr. 
 574 ; Gregory v. Campbell, 16 How. 417 ; Court Rules 30.) 
 
 The motion for a final order of distribution can be heard only 
 when the referee shall have fully executed the order of reference, 
 that is, there must be a general report. If there has been a separate 
 report only, it cannot so be brought to a hearing ; but the party 
 desiring relief, upon the coming in of a separate report, must apply 
 on motion for an appropriate order other than the final order for 
 distribution. (2 Dan. Ch. Pr. 964 ; 1 Barb. Ch. Pr. 558 ; 1 Van 
 S. Eq. Pr. 561, 562-573.) 
 
 If the exceptions have been taken and set down for argument at, 
 the same time with the motion for a final order of distribution, the 
 exception should first be disposed of, and the hearing then had upon 
 the motion for the final order. This rule is, however, discretionary 
 
38 SURPLUS MONEYS IN 
 
 with the court, which, for its own convieuieuce, or other good 
 cause, may direct the whole matter to be disposed of in one argument. 
 {Vide Forrest's case, 1 Van S. Eq. Pr. 570, note.) 
 
 Sec. isr Of the costs of the proceedings in claims for surplus moneys. 
 
 In Elwell V. Robbins, S. T. 1872, reported in 43 How. Pr. 108, 
 Balcom, J., said : "It was held, in the N. Y. Life Ins. and Trust Co. 
 V. Vauderbilt (12 Abb. 458), that in disposing of surplus funds, 
 arising on foreclosure of a mortgage, the court has authority to 
 allow to the parties a suitable compensation for costs aud dis- 
 bursements, to be paid out of the fuuds, in addition to the taxable 
 costs. This is a special proceeding. It is provided by statute that 
 in special proceedings costs may be allowed in the discretion of the 
 court, and when allowed, shall be- at the rate allowed for similar 
 services in civil actions. (Laws of 1854, p. 593, § 3.) The claimants 
 to the surplus moueys in this case are entitled to the fees of the 
 referee and fees of the clerk in the proceeding. The only costs, 
 aside from disbursements, that can be allowed the claimants, at the 
 rate allowed for similar services in civil actions, are such as are 
 prescribed by the Code. The attorney for the claimants has made 
 two motions in this proceeding, one for the appointment of the 
 referee, and the other for the confirmation of his report. And by 
 section 315 of the Code, not exceeding $10 for each motion can be 
 allowed the claimants, or their attorney, in the discretion of the 
 court. I will not say but there may be cases where the proceedings 
 before the referee should be regarded in the nature of a trial, and a 
 trial fee allowed to the claimant of the surplus money in the dis- 
 cretion of the court." 
 
 The co^ts and expenses of the proceedings, on an application for 
 distribution of surplus moneys, are properly chargeable to the 
 fimd. (Oppenheimer v. Mosher, 3 Hun, 31, G. T. 1874.) 
 
 No allowance can be made for a percentage on the amount under 
 308th section of the Code, but the court will allow a suitable com- 
 pensation for costs and disbursements to be paid Out of the funds. 
 (12 Abb. 458-461.) 
 
MOKTGAGE FOEECLOSUEES. 39 
 
 ' Unsuccessful claimants of surplus moneys arising on a mortgage 
 sale, will be charged with the extra costs occasioned by their claims, 
 where the claim of the successful party is just and equitable, and 
 the amount of the surplus is small, and a large amount of unneces- 
 sary costs has been incurred in the litigation of the claims. (Lawton 
 V. Sa;;er, 11 Barb. 350, S. T. 1851; see also, Bevier v. Schoon- 
 maker, 29 How. 411.) 
 
 Where, in a bill of foreclosure, the widow of a mortgagor was 
 made a party, and answered and submitted to the decree of the 
 court, she was held entitled to the use of one-third of the surplus 
 proceeds of the sale of the mortgaged premises remaining in court, 
 after satisfying the mortgage debt, as her equitable dower, and 
 to her costs, to be paid out of the other two-thirds. (Tobele v. 
 Tobele ei nl. Ch. 1814, 1 John. Ch. E. 45.) 
 
 The I36lh chancery rule also provided, in respect to costs on the 
 reference, that any person making a claim to the surplus moneys 
 upon a sale of mortgaged premises, and who shall fail to establish 
 his claim on the reference before the master, may be charged with 
 such costs as the other parties have been subjected to by reason of 
 such claim. And the parties succeeding in the reference may be 
 allowed such costs as the court may deem reasonable, but no costs, 
 unnecessarily incurred on such reference, or previous thereto, by 
 any of the parties, shall be allowed on taxation or paid out of such 
 surplus. 
 
 Sec. 19. Power of the referee to enquire into the validity of the liens 
 upon the surplus. ^ 
 
 The question has arisen in the courts as to hiow far the referee has 
 power to enquire into the validity of the liens upon the surplus 
 Below will be found the leading authorities upon this question. 
 
 In Husted v. Dakin, G. T. 1857, 17 Abb. 147, it was held (see 
 opinion by Birdseye, J.) that it is true that, on a reference as to 
 surplus moneys under the rule of this court, the referee can only 
 take into consideration absolute liens on the estate, those which 
 subject it to be sold, as distinguished from any equitable claims not 
 matured into liens. But the referee, when he finds a lien regular 
 
40 SURPLUS MONEYS IN 
 
 and valid upon the record, has no right to go behiijd it to enquire 
 whether it is irregular or fraudulent or inequitable. He is to 
 enquire simply whether a lien exists, not whether it ought to exist. 
 That enquiry is reserved to the court, and can be made only on 
 notice, and in such a manner as to present the objection to the lien 
 distinctly, and so that each party may be heard and the decision 
 may be reviewed. Whether such investigation be had on motion, 
 or made formally by suit, with pleadings, presenting plainly the 
 point to be litigated, it will be whoily distinct from the examination, 
 which would be had if the claims of the apjjellant are sustained. 
 For the I'eferee, under the Supreme Court rule, proceeds without 
 pleadings, stating the rights or claims of the parties, and without 
 notice, as between the conflicting claimants, of the nature of the 
 claims they intend to assert. He has no power to conduct the 
 investigation of any such matter. He is not a referee under the 
 Code, and possesses none of the enlarged powers given to such a 
 referee. He is only to fulfill the duty prescribed for him by the 
 Supreme Court rule. He has done this when he has ascertained 
 and reported the amount due to the claimant, or any other person, 
 which is a lien upon the surplus moneys, and has ascertained the 
 prioritises of the several liens thereon. 
 
 In tlie case of th6 Union Dime Savings Institution, etc. v. Osley 
 and others, G. T. 1875, reported in 4 Hun, 657, there was an appeal 
 from an order vacating and setting aside the report of a referee 
 made in proceedings relative to surplus moneys. All of the claims 
 except one were seriously contested. The order of reference, how- 
 ever, was made without objection. The court at Genei-ai Term 
 held that the order of reference usually inade to ascertain the 
 amount of surplus moneys remaining after a sale on foreclosure, and 
 the liens and claims against the same and then- priorities, is not 
 granted for the investigation and determination of contested claims, 
 but for the purpose of ascertaining liens and claims about which 
 there is no dispute, and to settle the priorities of the liens, that each 
 may be adjusted according to its legal status. 
 
 lu this matter, which was a summary proceeding, and not an 
 action ; and under the circumstances which marked its progress, 
 
MORTGAGE FORECLOSUEES. 41 
 
 and the doubt which existed in relation to the counter claim urged, 
 the court thought it better to compel the parties claimants to pro- 
 ceed by action in the usual way, and thus afford the devisees all the 
 benefits arising from the advantages of pleadings, and the tribunals 
 which are, by law, designated for the investigation and adjudication 
 of disputed claims. The precedent of submitting such demands to 
 determination, on an application to ascertain liens upon surplus 
 funds, does not commend itself. (See King v. West, 10 How. Pr. 
 R. 333 ; Husted v. Dakin, 17 Abb. Pr. R. 137.) And when the 
 reference is made, as in this case, to ascertain and report, the court 
 should be satisfied by the result beyond all doubt, before adopting 
 the report, that the claims are just and should be paid. (See 10 
 How. Pr. R. 333, to same effect.) 
 
 The 136th Chancery rule, for which the present rule 68 of the 
 courts is a substitute, as amended in 1840, declared that the liens 
 upon which claims to surplus moneys might be founded were only 
 those created by judgment or decree. 
 
 It was however held, in Mutual Life Insurance Co. v. Bowen, 47 
 Barb. 618, that on a proceeding for the distribution of surplus 
 moneys, arising from the sale of mortgaged prenlises under a 
 decree for the foreclosure of a first mortgage, that the holders of a 
 fourth mortgage might set up before a referee usury in a third 
 mortgage. If the third mortgage is affected or tainted with usury, 
 it is void as to the holders of the fourth mortgage ; and as to them 
 is not a lien, either at law or equity, on the surplus moneys. But 
 see Mechanics' Bank v. Edwards, 1 Barb. 272, S. T. 1847, where it 
 was held that it was not competent for a second mortgagee to set up 
 usuiy in the first lien ; that it was a personal defense, confined to 
 the borrower, his sureties, heirs, devisees and representatives, or to 
 those persons only who are bound by the original contract to pay 
 the sum borrowed. 
 
 In the Couit of Chancery, 1837, it was held that where a fund is 
 in court, arising from the surplus moneys in a foreclosure suit, or is 
 in the hands of the officers of the court, it is a matter of discretion 
 with the court to direct a bill to be filed to ascertain the rights of 
 conflicting claimants, or to settle their rights, upon a reference to a 
 
42 SURPLUS MONEYS IN 
 
 master. An 1 a claimant, who has obtained a reference to ascertain 
 his right to such surplus, cannot afterwards object to the claims of 
 other persons as improper to be settled on a reference without a 
 bill filed by them. (Sweet v. Jacocks, 2 Paige, 355.) 
 
 Junior judgment creditors having conflicting claims to priority, 
 should apply to the court before sale for such directions to the 
 master as will enable them to settle their respective rights upon the 
 reference as to the surplus. (Snyder v. Stafibrd, 11 Paige, 71. But 
 see Smart v. Bement, 4 Abb. Ct. Ap. Dec.) 
 
 It is considered that parties having conflicting claims to the sur- 
 plus might come in at the time of the making of the final decree, 
 and have a disposition made of the rights in the decree, stating the 
 validity and priority of their claims upon the surplus moneys to 
 arise upon the sale ; or in default thereof, then, in view of the 
 authorities cited above, that the referee has no right to inquire into 
 and dispose of the question of the validity of the claims as liens on 
 the surplus ; that the conflicting rights should be determined by 
 action between the respective claimants to the fund in question. 
 
 Sec. 20. The Ifens must be absolute liens as distinguished from equitable 
 claims not matured into liens. 
 
 In King v. West. 10 How. Pr. R. 333, it was held at S. T. 1854, 
 that in a reference in regard to surplus moneys in a foreclosure suit, 
 the liens referred to in this rule are those which subject the estate to 
 be sold under execution without any further intervention of the 
 court. Claims, however equitable, which are not matured into liens 
 under which the property can be charged in execution, and sold 
 without further adjudication, cannot be taken into consideration by 
 the referee, and in Husted v. Dakin, 17 Abb. 137, G. T. 1857, it was 
 said, citing King v. West, that it would seem to be well settled that 
 on a reference' to compute and ascertain the claims to surplus moneys, 
 under the rule that the liens referred to, are those which subject the 
 estate -to sale on execution. Such liens as without any further inter- 
 vention of the court, would enable the holder of the lien to make 
 sale of the property on which it has a lien. Vide U. D. Savings 
 Inst. V. Otley et al., 4 Hun, 657. 
 
MOKTGAGE FOEECLOSURES. 43 
 
 Bee. 21. The inchoate rights cf mechanics and material men under the 
 statute, when the lien is not established by judgment. 
 
 It is the duty of the court, upon the foreclosure of a mortgage, to 
 provide for the sale of so much of the mortgaged premises, and in 
 such manner, that parties having equities subject to the primary lien, 
 shall not be prejudiced. This power may be exercised so long as 
 the subject-matter and the parties remain before the court and under 
 its jurisdiction, as well after a sale, if sufficient to satisfy the pri- 
 mary lien as before, and the inchoate rights of mechanics and mate- 
 rial men under the statutes giving them a lien are entitled to such 
 protection, although not established by judgment. Whether the 
 Supreme Court in such a case has power, finally, or not, to adjudi- 
 cate upon the claim of a mechanic's lien in the city of New York 
 (where juiisdiction for that purpose is conferred on certain local 
 courts), it is its duty to see that the lien, if established, shall not 
 have been defeated by a withdrawal of the fund, and for this pur- 
 pose it may inquire, so far as necessary, to ascertain that the claim is 
 not wholly groundless. 
 
 Where, therefore, it was questionable whether a lien claimed by a 
 mechanic upon several lots and buildings in the city of New York, 
 subject to a prior mortgage attached for the whole amount to every 
 part of the premises, or only for a distributive portion to each of 
 them, and the greater part (enough to pay the mortgage), had been 
 sold, leaving it doubtful if the remainder were sufficient to satisfy 
 the whole claim. Held, that it was competent and proper to make 
 a supplementary order for the sale of the remainder, and to hold the 
 proceeds to abide the adjudication of the claim. Livingston v. Mel- 
 drum, 19 N. Y 440, Ct. of Appeals, 1859. 
 
 Upon the argument of the appeal, in the above entitled action in 
 the Court of Appeals, it was insisted that until the defendants, who 
 claimed to have mechanics' liens, had established their claims by the 
 proceedings prescribed in the lien law, for that purpose, they had 
 no liens which the court could notice, or was bound to protect. 
 
 Selden, Justice, in delivering the opinion of the court, said : The 
 consequences of this practice, if fully sustained, would be that the 
 mechanic could have no protection until he had first obtained judg- 
 
U SURPLUS MONEYS IN 
 
 ment. Suppose notice of a mechanic's lien to be filed between 
 two mortgages upon a single house and lot, upon a foreclosure 
 unde» the first mortgage could the second mortgagee be entitled to 
 the surplus, if any, without regard to the intervening lien, for the 
 reason that the latter had not been established by judgment ? If 
 so, then the notice amounts to nothing, and the whole object of the 
 act would be defeated. It would clearly be the duty of the Supreme 
 Court to see thiit the fund should not be withdrawn beyond the 
 reach of the lien, should it ultimately be established, and with a 
 view to the exercise of this power, it must have the right to exam- 
 ine the claim sufficiently, at least, to ascertain whether it is entirely 
 without foundation. The object of the law is to give a lien from 
 the time of filing the notice for such sum as shall ultimately prove 
 to be due, and it is the duty of all courts to aid in carrying this 
 object into effect. I cannot doubt, therefore, either the power or 
 the duty of the Supreme Court to see to the preservation of a con- 
 tingent lieu like that existing here, as well as one that is absolute. 
 
 Sec. 22. 'What are liens upon the surplus, and the order of priority in their 
 payment. 
 
 The surplus moneys arising upon mortgage sales are in court for 
 the use of the defendants and such other persons as may be entitled 
 thereto (Denton v. Nanny et al, 8 Barb. 618) ; and the question is 
 of frequent, occurrence as to what constitute liens upon the surplus, 
 and the order and priority in which they are to be paid. It has 
 already been stated {ante, § 20), that the hens should be absolute 
 liens, as distinguished from equitable claims not matured into liens, 
 and the cases cited below should be understood as beins held sub- 
 ject to that rule. 
 
 Below will be found the leading authorities as to what constitute 
 liens upon the surplus, and the priority in which they should be 
 paid out of the surplus. 
 
 Purchasers of land sold under execution have piority over junior 
 judgments. — By a sale of land on a judgment, the lien of the judg- 
 ment and the right to redeem under it are taken away ; but where 
 premises, subject to a prior mortgage, are sold under judgments 
 
MORTGAGE FORECLOSURES. 45 
 
 against the mortgagor, and are bid in by the judgment creditors, 
 such judgment creditors are entitled to the surplus moneys arising 
 from a sale of the premises under a decree for the foreclosure of 
 the prior mortgage in preference to the holder of a junior judg- 
 ment, upon which no sale has been had. (Shepard v. O'Neil, 4 
 Barb. 127, S, T. 1848 ; Snyder v. Stafford, 11 Paige, 71. 
 
 Upon second mortgage preferred to junior judgment. — Where 
 premises are sold under a prior mortgage, and there is a surplus 
 arising from the sale which is brought into court, such surplus 
 belongs to the mortgagees in a second mortgage, who have ad- 
 vanced money on the credit of the lands, rather than to judgment 
 creditors of the mortgagor, although their judgments are prior in 
 date to the second mortgage. Judgment creditors are entitled to 
 only such rights in the real estate of the debtor as the debtor right- 
 fully possesses. They can take one that belongs to the debtor and 
 nothing more. (Tallman v. Farley^ 1 Barb. 280 ; S. T. 1847. See 
 4 How. 219.) 
 
 That the liens of creditors are transferred from the land to the sur- 
 plus, and such surplus must be applied in discharge of the liens 
 according to the order of their priority. See Averill v. Loucks, 
 6 Barb. 471, which was a case where land was sold under a judg- 
 ment, and the surplus moneys were brought into court ; and it was 
 held that creditors having liens upon the land subsequent to the 
 judgment, had the same liens upon the surplus moneys which they 
 had upon the land previous to the sale. 
 
 A recorded mortgage has prvyrily over a subsequent judgment. — 
 A mortgage being a valid instrument as between the mortgagor and 
 mortgagee, a subsequent judgment creditor has nothing to say in 
 respect to its being recorded or otherwise. The recording act 
 relates to subsequent purchasers in good faith or for a valuable 
 consideration, and not to judgment creditors. A subsequent judg- 
 ment will not be preferred over a prior unregistered mortgage, 
 unless there has been a fraudulent intent on the part of the mort- 
 gagee in withholding his mortgage from the record. The mere 
 fact of retaining a mortgage six or seven months without having it 
 recorded will not operate as a fraud upon subsequent creditors of 
 
46 SURPLUS MONEYS IN 
 
 the mortgagee by the mortgagor, so as to postpone the mortgage 
 to their judgments. (Thomas v. Kelsey, 30 Barb. 269, G. T. 1859.) 
 
 The mortgage first recorded is 'presumptively the first lien. — Such 
 presumption may, however, be overcome where there are several 
 mortgages upon the same premises. The one jfirst recorded is pre- 
 sumptively the first lieu, and entitled to the surplus moneys on a 
 foreclosure and sale. The burden is upon the holder of the junior 
 mortgage to overcome this presumption of law. The date of the 
 acknowledgment is not, standing by itself, evidence of a deliveiy 
 of the mortgage, nor even is the record conclusive evidence of a 
 delivery. The presumption of priority between mortgages, arising 
 from the record, may be overcome by proof that the mortgage first 
 recorded has, by verbal agreement between the mortgagor and 
 mortgagee, not to become operative until the whole sonsideration 
 was paid, and that the second mortgage was delivered and recorded 
 before such payment. An agreement between a mortgagee and 
 the mortgagor that the mortgage shall be second in order as a lien 
 to another mortgage on the same premises, is valid between the 
 parties if made prior to the delivery of the mortgage, afld the 
 assignee of such second mortgage will have no greater right than 
 his assignor possessed, to disturb the lien of the prior mortgage.. 
 (Freeman v. Schroeder, 43 Barb. 618 ; same case, 29 How. 263, 
 G. T. 1864.) 
 
 Surrogates decree preferred to legacy. — Where there is a siu'plus 
 fund in court, after a foreclosure against executors, a creditor who 
 has obtained a surrogate's decree against the estate will be preferred 
 to legatees who claim the fund. (Clark's case, 15 Abb. 227, S. T. 
 1862.) 
 
 A prior judgment confessed by two partners in a firm consisting 
 of three ^nembers, for the purpose of securing a partnership debt, 
 is a lien upon the interest of the two in the partnership property, 
 and is entitled to priority in payment out of the surplus moneys 
 arising from a sale of the property, under a mortgage, over subse- 
 quent judgments recovered against all the members of the firm. In 
 such a case, the rights of the parties must be determined by the 
 priority of the legal liens, and the holder of the prior judgment' 
 

 MORTGAGE FORECLOSURE^. ) } • 47 
 
 will be entitled to two-thirds of the fund, and the subsequent judg- 
 ment creditors to one-third. (Stevens v. The Bank, etc., 31 Barb. 
 290, G. T. 1859.) 
 
 When morlgage preferred to mechanics' lien. — W., the owner of 
 three lots, executed a mortgage thereon to the plaintiif. Subse- 
 quently, and on the 11th day of February, 1873, he mortgaged 
 two of the said lots to Cooper. On the 7th day of April, 1873, one 
 McNiff, who had been employed by themortgagor to erect buildings 
 on these lots, filed a mechanics' lien against them. Subsequently 
 the three lots and houses were sold together upon the foreclosure of 
 the first mortgage. 
 
 Upon an application for the distribution of the surplus moneys 
 arising upon the sale, the referee found that each of the lots was of 
 equal value, and that each of them contributed an equal amount to 
 the net sum produced by the sale. Held (1), that Cooper was 
 entitled, as between the plaintifi"and himself, to insist that the third 
 house, not covered by his mortgage, should be first sold to satisfy 
 the plaintiff's demand. (2) That Cooper had already acquired this 
 right when the lien of McNiff was filed, and that the same was not 
 impaii'ed thereby. (3) That the fact that a separate sale was not 
 actually had was unimportant, as, from the facts feund by the 
 referee, the rule could be applied by the court with as much cer- 
 tainty as if there had been a separate sale of each lot. (4) That the 
 surplus moneys should be regarded as arising from the sale of the 
 two houses covered by Cooper's mortgage, and that he was entitled 
 to have his mortgage paid out of such surplus in preference to 
 McNiff. (Oppenheimer v. Walker, 3 Hun, 30 G. T. 1874.) 
 
 Purchase of part of premises by mortgagee. — Where one, holding 
 a mortgage, purchased an absolute title to a portion of the premises, 
 and afterwards foreclosed and sold the whole premises under the 
 decree. Held, that he was entitled, in the distribution of the surplus, 
 not to the amount paid for the portion purchased by him, but to 
 so much only as it probably contributed to the price brought by the 
 whole. (Frost y. Peacock, 4 Edw. 678, V. Chan. Ct. 1846.) 
 
 When general lien preferred to subsequent specific one. — In a con- 
 ' test for the surplus, a general lien on the mortgaged premises will 
 
48 , ' SURPLUS MONEYS IN 
 
 , : I ' 
 be preferred to a subsequent specific one, where the holder of the 
 former has no other fund to resort to. It is an unquestionable rule 
 of equity, that, where one creditor has a lien on two funds, and 
 another creditor has a lien upon only one of those funds, the latter 
 has a right to demand that the former shall have recourse first to 
 the fund, on which he alone has a claim, before resorting to the 
 other. (Mechanics' Bank v. Edwards, 1 Barb. 271, affirmed G. T. 
 1848 ; 6 N. Y. Leg. Obs. 159 ; S. C. less fully, 2 Barb. 545.) 
 
 Judgment against sheriff. — Where a judgment creditor is entitled 
 to the surplus, the fact that he has recovered a judgment against 
 the sheriff for not returning his exiecution upon such judgment, does 
 not affect his claim to the surplus, nor the claim of his assignee of 
 the first judgment, if he has assigned that judgment, unless it be 
 shown that the assignment was made for the benefit of the sheriff. 
 (Lansing v. Clapp, 3 How. Pr. R. 238, S. T. 1847.) 
 
 Zdens to be paid in order of time. — That incumbrances on mort- 
 gaged premises are to be paid off in the order of time in which 
 their respective liens attached. (See McKinstry v. Mervin, 3 Johns. 
 Ch. R. 466, note.) 
 
 A judgment by confession given to the plaintiffs to secure and indem- 
 nify them as sureties on a guardian's bond executed by defendant, 
 and being a lien upon the equity of redemption of the defendant's 
 mortgaged premises, will be entitled to surplus moneys in the order 
 of their lien, although the plaintiffs have not been damnified. Their 
 lien is transferred from the equity of redemption to the surplus 
 moneys arising on the sale, and can only be divested by their being 
 discharged from their liability. (Lansing v. Clapp, 3 How. Pr. R. 
 238. S. T. 1847.) 
 
 If there are no contesting creditors the holder of the mortgage is 
 entitled to receive out of the surplus moneys, payment of any 
 amount due him from the party to whom such surplus belongs, the 
 amount so due being ascertained by a reference or otherwise. (Beek- 
 man Fire Ins. Co. v. First M. E. Church, 29 Barb. 658, also 18 
 How. Pr. R. 431, S. T. 1859.) 
 
 Several nwrtgages. — But see Bvidgen v. Carhart, Hopk. 234, where 
 the complainant held two mortgages upon distinct parcels of land, ' 
 
MOETGAGE FOEECLOSURES. , 49 
 
 and filed one bill to foreclose both. On the sale of one there was 
 a deficiency, and on the other a surplus, it was held that the surplus 
 could not be applied to the deficiency. 
 
 , Where, a mortgagee,, whose mortgage is payable by installments^ sells 
 ifce premises under a statute foreclosure, to pay the amount which 
 has become due, subject to the future installments, the mortgaged 
 premises in the hands of the purchaser are, in equity, the primary 
 fund for the payment of such future installments, and the mortgagor 
 is entitled to the surplus moneys ai'ising from the statute fore- 
 closure beyond the installment which has become due on the costs 
 of sale. (Cox v. Wheeler, 7 Paige, 248.) 
 
 When senior mortgage not merged in equity of I'edernption — "When 
 a purchaser of the equit}^ of redemption in mortgaged premises, 
 which are subject to the incumbrance of two mortgages of different 
 dates, takes an assignment of the senior mortgage for the protection 
 of his title, such mortgage will not be merged in the equity of 
 redemption, so as to give the owner of the junior mortgage a pref- 
 erence in payment out of the proceeds of a sale of the mortgaged 
 premises. (Millspaugh v. Mc Bride et al, 7 Paige, 950. 
 
 , Office's' fees. — Where executions had been issued on judgments, 
 and sale of the land advertised by the marshal, but the execution 
 was withdrawn for the accommodation of the mortgagor. Held, 
 that the marshal's poundage and fees, as well as the judgments, 
 were in equity a lien on the surplus arising from a foreclosure and 
 sale. (Jones v. Moore, 1 Edw. 632, V. Chan. 1833 ; see 3 Cow. 383.) 
 
 Defendant when substituted for plaintiff. — That a defendant, who 
 has made payments for his co-defendant towards satisfying a prior 
 mortgage, and beyond his proportion of the burden, is to be deemed 
 substituted for the plaintiff, on a sale of the premises, to that 
 extent, and as to whether it should so be provided for in the decree 
 in order to enable iiim to obtain a corresponding amount of the 
 surplus. (See Lawrence v. Cornell, 4 Johns. Ch. R. 545.) . 
 
 Judgment creditors obtaining specific liens. — Where land is sold 
 under a decree of foreclosure and the surplus is brought into 'court, 
 judgment creditors, who had obtained a specific lien therein at law 
 4 
 
50 SURPLUS MONEYS IN . 
 
 before the foreclosure, are entitled to a priority of payment out of 
 the proceeds according to the dates of their respective judgments. 
 But if the person against whom the judgments were obtained had 
 only an equitable estate in the mortgaged premises, so that the 
 judgments could not bind his interest at law, the creditor's liens are 
 to be paid upon the basis of equality only. The rule of the court 
 as to equitable assets is to put all the creditors on an equal footing. 
 (Purdy V. Doyle, 1 Paige, 558.) 
 
 That a party who has a specific equitable lien on real property, 
 or the proceeds thereof, is entitled to preference over the general 
 lien of a creditor under a subsequent judgment. (See White v. 
 Carpenter, 2 Paige, 217 ; also see 6 Paige, 310; id. 355.) 
 
 Lien of attorney for costs. — The defendant Hiler having recovered 
 a judgment against one Stokes, commenced an action thereon, the 
 defendant Fitch acting as his attorney to have the same declared a 
 lien on certain premises which he alleged were purchased with 
 money belonging to Stokes, and recovered a judgment therein, 
 directing the sale of the said premises to satisfy his judgment. Sub- 
 sequently the premises were sold under the foreclosure of a prior 
 mortgage. Upon an application for the distribution of the surplus 
 moneys, a reference was ordered to ascertain the amount due to 
 Hiler, and any other person which was a lien on such moneys. Upon 
 the hearing before the referee, the defendant Fitch claimed a por- 
 tion of the moneys by virtue of his lieu, as attorney, upon the judg- 
 ment recovered against Stokes, Hiler did not object to his appear- 
 ance, but opposed the allowance of the amount claimed by him. 
 His claim was allowed by the referee, and from the order confirm- 
 ing the report this appeal was taken, the appellant insisting that 
 Fitch had no right to appear before the referee, and that his claim 
 could not be allowed under Rule 68. Held, (1) that the order of 
 reference authorized the appearance of Fitch, and that the error, if 
 any, could only be corrected by an appeal from that order ; (2) that as 
 no such objection had been made before the referee, it could not now 
 prevail ; (3) that as the whole proceeding was had by consent, even 
 if it was not good as a reference, it was good as an arbitration 
 between Hiler fl,nd Fitch to settle the amount "due to the latter, out 
 
MORTGAGE FOEECLOSURES. , 51 
 
 of the money held by the judgment of Hiler ; (4) that the court 
 will not permit a party to take money out of its control, without 
 compensation to the attorney by whom it was obtained, and that 
 even if Fitch had no such lien as to authorize him to file a notice 
 under Rule 68, the court had power for the protection of its officers 
 to direct the payment of his claim out of moneys controlled by it. 
 (Atlantic Savings Bank. 3 Hun, 209.) 
 
 W/ien lien extinguished by sale under judgment. — -By a sale of land 
 under a judgment, the lien of the judgment, and the right to redeem 
 under it, are extinguished. In like manner any claim upon surplus 
 moneys arising upon the foreclosure of a prior mortgage, is extin- 
 guished by such a sale, and a judgment debtor whose land has been 
 sold on execution, subject to an antecedent mortgage, and whose 
 equity of redemption has been subsequently foreclosed and sold, 
 has no right to redeem under the statute as a judgment debtor, 
 whose real property has been sold under execution. (Husted v. 
 Dakin, 17 Abb. Pr. R. 137.) 
 
 Sec. 23. Of the widow's dower in the surplus moneys. 
 
 The surplus moneys arising on a sale of land under a mortgage 
 foreclosure stand in the place of the land in respect to those having 
 liens or vested rights therein, and the widow of the owner of the 
 equity of redemption is entitled to dower in the surplus, as she was 
 before in the land. (Tobele v. Tobele, 1 Johns. Ch. R. 45.) In 
 Blydenburgh v. Northrup, 13 How. Pr. R. 293, S. T. 1856, 
 Emott, J., said : " I do not understand that any serious question 
 has ever been raised :is to the right of the widow to dower in the 
 surplus proceeds of her husband's lands, after satisfying all the 
 incumbrances to which she is bound to contribute. Her right to 
 dower in such a case cannot be denied without denying altogether 
 the right to be endowed of an equity of redemption, and nothing 
 is better settled in this state than the right of the wife to dower in 
 such an estate." 
 
 Matthews v. Duryee, 45 Barb. 69, G. T. 1864, was an action 
 brought by the plaintiff, as the widow of Charles L. Matthews, to 
 
52 SURPLUS MONEYS IN 
 
 recover her dower in surplus moneys arising from the sale of mort- 
 gaged premises under a decree for the foreclosure of a mortgage 
 executed by her husband. By an order made in that suit, the whole 
 of the surplus moneys were ordered to be paid over to the defend- 
 ant, on his claim as assignee, in trust for the benefit of the creditors 
 of the assignor, Charles L. Matthews, the former owner of the 
 equity of redemption, and the late husband of the plaintifi", -and 
 the same were still in his hands. The plaintiff, though made a 
 party to the foreclosure suit, failed to appear or assert her claim 
 to dower, and filed no claim to the surplus moneys, and was not 
 notified of the reference respecting them. It was held that the sur- 
 plus moneys arising in a sale of land under a mortgage foreclosure 
 stand in the place of the land to those having liens or vested rights 
 therein, and the widow of the owner of the equity of redemption 
 is entitled to dower in the surplus, as she was in the laud before the 
 sale ; that where the widow of the mortgagor is made a party 
 defendant in a foreclosure suit, but omits to appear or assert her 
 claim for dower, she is not barred of her action for her share of the 
 surplus moneys by any order for their distribution in the foreclosure 
 suit. Nor is she barred from bringing such an action against the 
 person to whom the surplus moneys were assigned in the fore- 
 closure suit, by reason of her neglect or omission to assert her claim 
 on being made a party to a suit brought by that person for the set- 
 tlement and closing of his trust as assignee of the mortgagor. The 
 same case is also reported in 17 Abb. Pr. 256, and was affirmed in 
 4 Keyes, 525. (See also, Elmendorf •y. Lockwpod et aL, 4 Lansing, 
 393 ; Denton v. Nanny, 8 Barb. 618, and Vartee v. Underwood, 
 18 Barb. 564.) 
 
 Where the wife unites with her husband iu conveying an estate 
 in which she is entitled to dower, the conveyance operates as an 
 extinguishment of her right, not only with respect to the grantee 
 and his successors in interest, but also as to third parties. Accord- 
 ingly, where the husband gave a purchase-money mortgage upon 
 land, and he and his wife united in a conveyance of the mort- 
 gaged premises to another person, and afterwards the mortgage was 
 foreclosed by advertisement under the statute. Held, the question 
 
MORTGAGE FOEECLOSURES. 53 
 
 arising between herself and strangers to such conveyance, that the 
 wife was not, after her husband's decease, entitled to dower in the 
 surplus. (Elinendorf v. Lockwood, 4 Lans. 393, G. T. 1871.) 
 
 The courts of law having decided that a mortgagor in possession 
 of land mortgaged in fee, before foreclosure, or entry by the mort- 
 gagee, has (iu regard to all the rest of the world, except the mort- 
 gagee), the legal seizin, and that his equity of redemption might be 
 sold on execution, and that in case of his death while in possession 
 and before foreclosure, his widow was entitled to her dower in the 
 land mortgaged, of which she could not be deprived by a purchaser 
 of the equity of redemption of her husband ; the old Court of Chan- 
 cery in this State held that it would follow the doctrine of the courts 
 of law, and order the widow her dower out of the proceeds of the 
 sale of the moi'tgaged premises, on a bill for a foreclosirre and sale. 
 And where the wife of a mortgagor joined in a mortgage in fee, and 
 the mortgagor, afterwards executed a second mortgage, in which the 
 wife refused to join, and after a decree for sale on a bill filed by the 
 first mortgagee, but before sale the mortgagor died. Held, that the , 
 widow was entitled to her dower out of the surplus proceeds remain- 
 ing after the first mortgage was satisfied. (Titus v. Nelson, 5 Johns. 
 Ch. R. 454 ; Chancery, 1821. Vide 8 Barb. 618 ; see also, 7 
 Johns. 278 ; 15 Johns. 319 ; 14 Wend. 233 ; 19 id. 162 ; Bell v. 
 Mayard, 10 Paige, 49.) 
 
 A. widow is entitled to dower in an equity of redemption, as well 
 when the mortgage was executed before marriage, as when it is 
 executed by the husband and wife during coverture. (Denton v. 
 Nanny, 8 Barb. 618, to same effect, Wheeler v. Morris, 2Bosw. 524.) 
 
 The provision of 1 R. S. 741, § 5, that the wife is not entitled to 
 dower in lands mortgaged when purchased for the purchase-money 
 as against the mortgagee, and those claiming under him, does not 
 afl'ect her right to dower in the equity of redemption. (Ct. of App. 
 1859 ; Mills ?;. Van Voorhies, 20 N. Y. 412 ; S. C. 10 Abb. Pr. 152, 
 rev'g 23 Barb. 125 ; Blydenburgh v. Northrup, 13 How. Pr. 289 ; 
 see also, Hawley v. Bradford, 9 Paige, 200.) 
 
 A widow who elects to take and accepts a gross sum for surplus 
 moneys paid into court under a judgment of foreclosure, in lieu of 
 
54 SURPLUS MONEYS IN 
 
 her dower right, is entitled to the full sum accepted free from any 
 costs or commissions in a reference in obtaining it. (Campbell v. 
 Irving, 43 How. 258.) 
 
 Sec. 24. The inchoate right of dower also follows the surplus moneys. 
 
 Where a wife joins her husband in executing a mortgage npon 
 his land, which contains the usual powers of sale, and, in the event 
 of a sale, the surplus is expressly reserved, to be paid to the mort- 
 gagors, the wife has a right to have the residuum of the subject 
 mortgaged not required tQ satisfy the mortgaged debt, whether 
 it exists in lands unsold, or in the proceeds of land sold under the 
 decree of foreclosure, so appropriated as to secure to her her dower 
 in case she survives her husband ; and where there are surplus 
 moneys in court, arising from the sale of the mortgaged premises, 
 she is entitled, as against judgment creditors, to have one-third of 
 the amount invested for her benefit, and kept invested during the 
 joint lives of herself and husband, and during her own life in case 
 of her surviving her husband, as and for her dower in such surplus 
 moneys. (Denton v. Nanny, 8 Barb. 618, S. T. 1850.) 
 
 It was also held in Byldenburgh v. Northrup, 13 How. Pr. E. 289, 
 S. T. 1856, that a wife is entitled to an inchoate right of dower in 
 the surplus proceeds of lands sold on a foreclosure of a mortgage 
 given for the purchase-money after satisfying the mortgage when 
 she executed the mortgage with her husband. 
 
 In Vartee v. Underwood, 18 Barb. 561, G. T. 1854, it was held 
 that the wife's inchoate right of dower in the husband's land follows 
 the surplus moneys raised by a sale in virtue of the power of sale 
 in a mortgage executed by her with her husband, and will be pro- 
 tected agauist the claims of the husband's creditors by directing 
 one-third of such surplus moneys to be invested. 
 
 To the contrary of the above were dicta in Titus v. Neilson, 5 
 Johns. Ch. 452 ; Bell v. Mayor, etc., of N. Y. 10 Paige, 49 ; Frost 
 V. Peacock, 4 Edw. 678, 695, 
 
 The Court of Appeals have held, in Matthews v. Duryee, 4 Keyes, 
 525, 1868 (citing Mills v. Voorhies, 20 N. Y. 412), that the inchoate 
 
MOKTGAGE FORECLOSURES. 55 
 
 right of dower of the wife is as much entitled to protection as the 
 vested rights of the widow ; and her right of dower in the surplus 
 remaining after the payment of mortgages foreclosed, in lands of 
 which she had a dower right, subject to the prior lien of the mort- 
 gages, cannot be affected by the question whether the sales upon the 
 foreclosure suits took place before or after the death of the husband. 
 
 Sec. 25. Of the investmeut of the 'wido'w's dower in the surplus, and of 
 paying her a gross sum in lieu of an annual income. 
 
 Where the widow of the owner of the equity of Redemption, as 
 such, is entitled to dower in the surplus funds, one-third thereof is 
 sometimes ordered to be put out at interest for her benefit 
 (1 Johns. Ch. R. 45) ; and sometimes she is willing and consents to 
 accept a gross sum in lieu of such annual interest or income for life. 
 
 Whenever a tenant in dower is entitled to the annual interest or 
 income of any sum paid into court and invested in permanent secu- 
 rities, such party shall be charged with the expense of investing 
 such sum, and of receiving aud paying over the interest or income 
 thereof. (Sup. Court Rule, 76.) 
 
 But if such party is willing, and conseiits to accept a gross sum 
 in lieu of such annual interest or iucome for life, the same shall 
 be estimated according to the then value of an annuity of six per 
 cent, on the principal sum during the probable life of such person, 
 accorduig to the Portsmouth or Northampton tables. (Idem. ; see 
 4 Keyes, 525.) 
 
 The Court of Appeals have held the Northampton tables to be 
 competent evidence upon the question as to the probable duration 
 of life. (Schell v. Plumb, 55 N. Y. 592.) 
 
 The proper rule for computing the present value of the wife's 
 contingent right of dower during the life of the husband is, to 
 asce:tain the present value of an annuity for her life equal to the 
 interest in the third' of the proceeds of the estate to which her con- 
 tingent right of dower attaches, and then to deduct from the pres- 
 ent value of the annuity for her life the value of a similar annuity 
 depending upon the joint lives of herself and her husband, and the 
 
56 SUEPLUS MONEYS IN 
 
 difference between those two sums will be the present -vralue of her 
 contingent right of dower. (Jackson v. Edwards, 7 Paige Ch. 
 1839, citing McKeon's Pr. L. Tables, 23, § 4; Hendry's Ann. 
 Tables, 87,.Prob. 4.) 
 
 In regard to the investment of moneys upon securities, see Sup. 
 Ct. Kules 73, 74, 75. 
 
 In cases where the rights of other lienors do not intervene by 
 way of subsequent mortgages, judgments or otherwise, and where 
 the entire surplus is to be paid to the mortgagor, subject to his 
 wife's inchoate estate of dower, and it is immaterial to the parties 
 interested, as husband and wife, whether the inchoate dower estate 
 is definitely ascertained or not, it is quite frequently the practice 
 that they sign and acknowledge a stipulation, either before the 
 referee or in cases where the application is made direct to the court, 
 without the intervention of a reference, then that it be embodied in 
 the motion papers, stating how the money shall be divided between 
 them, or that the wife relinquish her claim to her inchoate estate of 
 dower in the surplus in favor of her husband. The object of this 
 proceeding is to obviate the necessity of computing the present 
 value of her inchoate dower right in the moneys. Of course, in 
 cases where the wife insists upon receiving her exact interest in the 
 surplus the computation will have to be made ; but there is no sub- 
 ject of mathematical computation so liable to unsatisfactory results 
 as that which is applied to the subject of contingent annuities, 
 especially where the lives of more than one person are taken into 
 consideration. (See tables in Appendix.) 
 
 Sec. 26. Of the interest of a lessee for years in the surplus moneys. 
 
 In Clarkson v. Skidmore, 46 N. Y. 301, Ct. of App. 1871, 
 Eapello, J., in delivering the opinion of the court, said : The sur- 
 . plus moneys in controversy belong to the parties who had estates 
 or interests in the land sold which were cut off by the sale. The real 
 estate having been converted into money, the several parties were 
 entitled to be paid out of the fund the , equivalent of their respect- 
 ive interests in the order of their priorities, as between each other. 
 
MORTGAGE FORECLOSURES. 57 
 
 After the satisfactioD of the mortgage debt, which was the first lien, 
 the claimants were, first, the widow of the mortgagor, in respect of 
 her right of dower ; secoudlj', the lessee of the mortgagor and the 
 mortgagees claiming imder such lessee ; and, thirdly, the executor of 
 the mortgagor and lessor, who was entitled to the residuum what- 
 ever it might be. The value of the widow's right of dower has 
 been ascertained, and no question is raised as to the amount to which 
 she was entitled. The claims of the mortgagees of the lessee depend 
 upon the valuation of the interest of the lessee, and must be satisfied 
 out of the sum to be set apart in respect of that interest so far as it 
 may go. They need not, therefore, be separately considered. The 
 controversy is thus reduced to the apportionment to be made 
 between the lessee and the executor of the lessor of the fund still 
 remaining in court. That the lessee had an estate in the land is too 
 clear to admit of discussion. And it is equally plain that his claim 
 to compensation for the value of this estate, has precedence of that 
 of his lessor from whom the estate was derived. But the deter- 
 mination of the principle upon which the value of this estate for 
 years is to be ascertained, involves questions of considerable diffi- 
 culty and importance. 
 
 The Court of Appeals, in the case above referred to, held as fol- 
 lows : 
 
 That a lessee for years, of mortgaged premises, holding under a 
 lease containing a covenant of quiet enjoyment, upon foreclosure 
 and sale under the mortgage, is entitled to receive, out of the sur- 
 plus moneys, the value of the use of the premises for the remainder 
 of his term, less the rents reserved and other payments to be inade 
 by him under the lease. 
 
 By being made a party to the foreclosure suit, he is not concluded 
 as to the value of the fee, by the amount the premises brought at 
 the sale ; nor is he limited to a percentage thereon in fixing the 
 rental value. The right gi'anted to the lessee by the lease is an 
 interest in the premises, capable of being sold and transferred, and 
 has precedence of the estate of the lessor, and is an encumbrance 
 upon the land to the extent of the lessor's interest. The lessee 
 having this right of priority over the lessor, is interested only in 
 
58 SURPLUS MONEYS IN 
 
 seeing that the property produces sufficient to cover his interest. 
 He has no interest or duty to create a fund for the benefit of the 
 lessor ; and if the premises are sold at less than their value, the 
 loss must fall upon the latter. 
 
 As between the lessor and lessee, the estate of the latter is not 
 subject to the claims of the mortgagee, or to any other encumbrance 
 or claim upon the premises. They are charges upon the interest of 
 the lessor only, who is bound to protect the estate of the lessee there- 
 from. 
 
 The efiect of the sale is to substitute the proceeds, as far as they 
 will go, for the several interests in the premises sold, and such inter- 
 ests are to be satisfied out of the proceeds in their order of priority. 
 Equity will not permit one claimant of the fund, who has covenanted 
 to protect the title of another, to increase his own share of the fund, 
 by compelling the other to contribute to the discharge of prior 
 encumbrances. 
 
 Where the parties claimant are before the court, and the contest 
 is between them only, or those claiming under them, the court has 
 power to make a final disposition of the fund, in accordance with 
 the covenants existing between them, and the equities resulting there- 
 from. 
 
 Upon an appeal to the General Term, from an order confirming 
 the report of a referee, giving the entire surplus moneys to the 
 executor of the lessor, the court set aside the report and referred the 
 case back, and in the order directed that the share of the lessee 
 should be asce;rtained, by computing the value of the residue of his 
 term in the surplus, deducting therefrom the amount of the payments 
 to be made by him under the lease. Upon the second hearing, evi- 
 dence was received, under objection on the part of the executors, as 
 to the annual rental value of the premises. The executors, relying 
 iipon the decision of the General Term, offered no evidence thereon. 
 Held, that the executors had a right to repose upon their objections, 
 as the case then stood, and the matter should be referred back to 
 give them an opportunity of adducing evidence upon the question 
 of the value of the term. 
 
MORTGAGE FORECLOSURES. 59 
 
 Sec. 27. The heir or devisee entitled to surpIuB in preference to an admin- 
 
 iE^rator. 
 
 Where one dies seized of real estate encumbered by a mortgage, 
 which is thereafter foreclosed, and the land sold, any surplus arising 
 on the sale is to be regarded as realty, and goes to the heirs or 
 devisees— not to an administrator; and an administrator, as such, 
 cannot maintain an action to recover the same ; and this is so, 
 although the mortgage provides that the surplus shall be paid to 
 the mortgagor, his executors or administrators. (Dunning, Trustee, 
 etc. v. The Ocean Bank, 61 N. Y. 497, Commission of Appeals, 1875.) 
 
 Dwight, Commissioner, in delivering his opinion in the above 
 case, said : I concur with Judge Reynolds in his disposition of this 
 case. I desire to add a few words upon a question much discussed 
 on the argument, which is, whether the money in litigation could 
 have been collected by the administrator, on the theory that it was 
 personal property. This depends upon the correct application of 
 the doctrine of " equitable conversion." In order to become per- 
 sonal estate, for the purposes of administration, the money must 
 have belonged to the decedent as personalty. Whatever once 
 descended to her heirs or devisees cannot be divested from them , 
 except for the purpose of liquidating' some superior claim. After 
 that has been satisfied, any surplus belongs to the heir or devisee, 
 on the theory that it stands in the place of and represents the 
 original fund. The conversion of the land into money was only 
 made for a special purpose; and that having been accomplished, 
 the surplus, by a fiction of equity, is re-converted into land. The 
 truth of this view can be easily shown by supposing that the mort- 
 gaged property had consisted of separate lots, and no more had 
 been sold on the foreclosure than was necessary to satisfy the 
 mortgage. The unsold residue would then, of course, belong to 
 Mrs. Dunning's heirs or devisees. Could it possibly have made any 
 difference if the lots had happened to have been sold, and a surplus 
 realized ? If so, this would be to make the rights of heirs and 
 devisees depend upon accident, rather than principle. As this prop- 
 erty once belonged to the devisee in trust, and for the space of time 
 between the date of the testatrix's death and that of the foreclosure. 
 
60 SUEPLUS MONEYS IN 
 
 the surplus, which in equity represents that estate, still belongs to 
 the devisee. 
 
 Commissioner Dwight (p. 505), in further commenting upon the 
 case above referred to, speaking of chap. 658, Laws 1867 (see 
 page, post), says : This statute is not in the way. This act 
 lends no countenance to the theory that the present surplus is to be 
 regarded as personal property. On the other hand, it is carefully 
 framed, on the supposition that it is real estate. The first section 
 provides that the surplus shall be paid over to the surrogate of a 
 court having jurisdiction to entertain an application for the sale, or 
 mortgage, or lease of the real estate of a deceased person for the 
 payment of debts. The second section requires that the surrogate 
 shall, upon the application of an executor, administrator or creditor, 
 made upon the same manner as upon proceedings for the sale, etc., of 
 land, make an order disposing of the surplus moneys as jDroceeds of 
 real estate. The section has, as would appear, only a limited scope, 
 and is simply designed to provide a method for applying the sur. 
 plus to the payment of debts. It makes no change in the law, as to 
 the proper person (considered as owner) to bring an action for the 
 surplus. The terms of the statute show that the surplus is regarded 
 as real estate. The most careful precautions are taken to prevent 
 the heirs from being deprived of it, except in the same manner and 
 to the same extent that would be permitted in case the land had 
 remained unsold. But a creditor who has established his claim by 
 a surrogate's decree, will be entitled to preference over a legatee. 
 (Clark's case, 15 Abb. Pr, E. 227, S. T. 1862.) 
 
 Sec. 28. Of the payment of the surplus funds to the surrogate in cases 
 where the mortgagor is dead. 
 
 The legislature of this State has made enactments in regard to 
 the disposition to be made of surplus moneys arising from the sale 
 of any lands or real estate of which any person died seized by 
 virtue of any mortgage or other lien thereon. 
 
 These laws consist of Chap. 358, of the Laws of 1867 ; Chap. 
 170, of the Laws of 1870, and Chap. 834, of the Laws of 1871. 
 They will be found collated on page 118 of the 3d Vol. of the 6th 
 edition of the Eevised Statutes. 
 
MOETGAGE FORECLOSURES. 61 
 
 By the amendatory act of 1871, above referred to, it is provided 
 that this legislation, above .mentioned, shall not apply to any case 
 where letters testameutry or letters of administration within this 
 State have been, or shall have been, issued to the personal represent- 
 atives or represen ative of such deceased person four years pre- 
 viously to the making of the sale, and from which such surplus 
 moneys arise. 
 
 And by the decision in the case of Loucks ?;. Van. Allen (11 Abb. 
 N. S. 427, 1871, S. T.), it was held tliat the foregoing acts are limited 
 ■ to sales made otherwise than by authonly of a court. 
 
 The following are the provisions of the statutes above referred 
 to, and following them will be found the opinion of Leaened, J., 
 in the case of Loucks v. Van Allen, above spoken of : 
 
 " Whenever there shall remain any surplus moneys arising from 
 the sale of lands or refil estate, of which any deceased person died 
 seized, by virtue of any mortgage or other lieu thereon, given by or 
 obtained against such person during life, the person or corporation 
 making such sale, or the person holding the same, shall pay over 
 such surplus money to the surrogate of any court having jurisdic- 
 tion to entertain an application for the sale, mortgaging or leasing 
 the real estate of a deceased person for payment of debts within 
 thirty days after making such sale, or within thirty days after the 
 passage of this act, and the surrogate's receipts for the same shall 
 discharge such person or corporation from all liability on account of 
 such moneys. 
 
 " But this act shall not apply to any case whei-e letters testa- 
 mentary or letters of administration within this State have been, or 
 shall have been, issued to the personal representatives or representa- 
 tive of such deceased person four years previously to the making 
 of the sale on which such surplus moneys arise. 
 
 " The surrogate to whom such surplus moneys shall be paid, shall, 
 upon the application of any person entitled thereto, or to any part or 
 share thereof, by petition duly verified by the oath of the applicant, 
 aud by such other proof as shall be required by the surrogate, 
 stating the name or names and residence of the party or parties 
 entitled thereto, or to any part or share thereof, and also describing 
 
62 SURPLUS MONEYS IN 
 
 the premises so sold, make distribution of the said surplus moneys 
 to the party or parties entitled thereto, in the same manner, by like 
 proceedings, and with like effect, as moneys derived from the sale 
 of real estate made by order of the surrogate, under and by virtue 
 of existing provisions of law, are required to be distributed. 
 
 " On such distribution the claimant or claimants of the said surplus 
 moneys, or any part or share thereof, shall make proof of his, her, 
 or their right or title thereto, by evidence satisfactory to said surro- 
 gate. 
 
 " It shall be competent, on such distribution, for any party claim- 
 ing such surplus moneys, or any part or share thereof, to controvert 
 by proofs before said surrogate, the claim or claims of any adverse 
 claimant of said surplus moneys, or of any part or share thereof. 
 
 " In case any of the parties claiming said surplus moneys, or any 
 part or share thereof, are minors, having no general guardian appear- 
 ing to protect the rights and take cai'e of the interest of such minors, 
 the surrogate shall appoint some proper and competent person special 
 guardian to protect the rights and take care of the interests of such 
 minors ou such distribution. The written consent of such special 
 guardian, to serve a^ such, shall be signed by the person so appointed 
 and shall be filed in the office of said surrogate. And it is hereby 
 made the duty of such special guardian to attend the proceedings 
 before said surrogate on such distribution, and protect the rights and 
 take care of the interest of such minors. 
 
 "The party making such application shall serve, or cause to be 
 served, upon all persons upon whom a notice of said sale was served, 
 or who were parties defendant in such foreclosure and sale, and 
 upon all persons named in said petition, a copy of said notice of 
 distribution. Such notice shall be served, and the service thereof 
 proved in the same manner as is provided for in part second, title 
 fifth, (if the Code of Procedure, entitled, ' Of the manner of com- 
 mencing civil actions ' for the service of a summons and the proof 
 of such service." 
 
 In Louuks V. Van Allen, reported in 11 Abb. Pr. R. N. S. p. 427 
 (Sup. Ct. 3d Dist. Special Term, July, 1871), there was a motion to 
 direct the county treasurer to pay to the surrogate, surplus moneys 
 
MORTGAGE FORECLOSURES. 63 
 
 arising on a foreclosure sale. The court held that when the mort- 
 gagor is dead, the Supreme Court has power to distribute the sur- 
 plus on a mortgage foreclosure among the persons entitled, and will 
 not, therefore, direct the county treasurer, in whose hands such sur- 
 plus is, to pay the same to the surrogate under Laws of 1867, vol. 2, 
 p. 1690, ch. 658. Justice Learned, in delivering the opinion in 
 the above cited case, said : This is a foreclosure sale in which a sur- 
 plus remains. The mortgagor is dead. The defendants, Samuel 
 Van Allen, and another, administrators of the mortgagor, now move 
 that the court direct the county treasurer, in whose hands the sur- 
 plus is, to pay the same to the surrogate of Albany county, for distri- 
 bution, according to Laws of 1867, ch. 658, and the amendatory acts, 
 and the question is whether that act applies to a surplus arising from 
 a sale made by order of this court. The language .of the act is, 
 " the person or corporation making such sale, or the person holding 
 the same (i. e. the surplus), shall pay over such surplus to the surro- 
 gate." Now, in case of a sale under order of this court, the sale is 
 made by the court. The referee or sheriff is merely the officer of 
 the court. And it cannot be said that the sale is made by a person 
 or a cofpwation, or that there is any person who holds the money. 
 The money is held by the court, and is subject to the order of the 
 court. As to those cases to which the act applies, it is imperative, 
 " shall pay over." So that if the act applies to a sale made under 
 order of the court, this present motion is unnecessary. The referee 
 or sheriff under such a construction, would be bound to pay the 
 money to the surrogate, notwithstanding the decree in the foreclosure 
 might provide otherwise. I do not think this can be the true con- 
 struction of the act. I thiuk it must be limited to sales made other- 
 wise than by authority of a court. . It is true that the amendatory 
 act. Laws of 1870 (ch. 170, \ 5), speaks of parties defendant in such 
 foreclosure, and there is some force in the ai-gumeut that this must 
 refer to an action, and it is true also that the act T)f 1868 (ch. 804), 
 has provisions juj to foreclosures by advertisement. But I do not 
 think that the control of a court of general jurisdiction over money 
 paid into court, should be taken away, unless by express language. 
 It may be admitted in the present case that such a disposition of the 
 
64 SUKPLUS MONEYS IN 
 
 money as is asked for might be convenient, for it is stated that the, 
 debts of deceased are about $3,000, the personal property not over 
 $1,500, and there is no other real estate. But the question is not 
 whether it might not be convenient to send this money to the sur- 
 rogate, but whether this is the requirement of the statute. By 
 a careful reading of the statute, it will be seen that if applicable, the 
 whole surplus would have to be paid over to the surrogate after the 
 mortgage was satisfied. But there may be judgment liens on the 
 surplus, for which the court ought to provide, and always does pro- 
 vide. And it will not answer to say that the act refers to the sur- 
 plus after the payment of their liens, because it is not so expressed. 
 Besides the well known meaning of the word "surplus," in such 
 cases, is the surplus after the mortgage is paid. (Rule 64.) That 
 very ]ule makes no exception for the case of a deceased mortgagor. 
 Again, the court is entitled to distribute the surplus among the 
 parties entitled. This is not like the case of a sale, made by a per- 
 son or a corporation. There, no power exists to distribute the 
 surplus equitably. Here, the power is ample. This court can pro- 
 tect the interest of the creditors, and of the heirs, as carefully as the 
 other tribunals to which it is proposed to send the moneys, if this 
 case is applicable, then in every case of a surplus, where the mort- 
 gagor is dead, even were there no debts, or though the personal 
 property were ample to pay them,, the court would be powerless to 
 distribute the surplus. Indeed, as before remarked, this court 
 could not even control its own officer, but he would be obliged, 
 whatever the terms of the judgment, to pay the money to the surro- 
 gate, and the surrogate's reoeipt would be a discharge to the officer 
 of the court. Even if there should be a motion for a re-sale, the 
 court could not grant it after thirty days had expired because the 
 referee would have paid over the surplus to the surrogate, over 
 whom, of course, this court would have no jurisdiction. Clark's 
 case (15 Abb. Pr. 227) shows that the court does not act, in such 
 cases as this, in distributing the money equitably. The money is 
 now in this court. There is nothing to prevent those who are 
 entitled to it, creditors or heirs, from applying to the court, and 
 thereupon such a distribution as is just and equitable can' be made. 
 
MORTGAGE FORECLOSURES. 65 
 
 That is all which aay tribunal can do ; and to do that, this court, in 
 its equity jurisdiction, is competent. The motion was denied. 
 
 The acts above referred to are carefully framed, on the supposi- 
 tion that the surplus money is real estate. The second section of 
 the act of 1867 has onlj^ a limited scope, and is simply designed to 
 provide a method for applying the surplus to the 'payment of debts. 
 (By Dwight, Commissioner, in Commission of Appeals, 1875. Dun- 
 ning V. Ocean Bank, 61 N. Y. 495-505 and 6.) 
 
 Under the decision in the case last above mentioned (see ante, 
 page 59), and the decision of Justice Learned, above quoted, in 
 regard to the act of 1867, the first cited case holding that the heirs 
 and devisees are entitled to the surplus in preference to the admin- 
 istrator, and the latter case holding that the act of 1867, relative to 
 paying the surplus moneys to the surrogate, in cases where the 
 mortgagor is dead, does not apply to sales made by authority of the 
 court. The door seems to be left open for the heirs or devisees to 
 run away with the surplus proceeds of the sales of real estate under 
 mortgage foreclosures by action, to the hindrance, if iwt actual pre- 
 judice of those creditors of the deceased who have not perfected 
 their claims by absolute liens upon the equity of redemption of the 
 deceased mortgagor. It is presumed, however, that the surplus 
 funds coming to the heir or devisee might be temporarily held 
 undistributed to the heir or devisee, pending an application before 
 the surrogate for leave to sell or dispose of the surplus belonging to 
 the heirs or devisees, until such time as the same could be applied to 
 the payment of the indebtedness of the deceased moitgagor, in cases 
 where the personalty belonging to the estate of the deceased was 
 insufficient to pay such iudebtednesss. 
 
 Sec. 29. Of the disposition of the surplus funds arising upon the foreclos- 
 ure of mortgages by advertisement. 
 
 Chapter 804, of the Laws of 1868, entitled " An act for the dis- 
 position of the surplus moneys arising upon sales pursuant to part 
 three, chapter eight, title fifteen, of the Revised Statutes," entitled, 
 " of the foreclosure of mortgages by advertisement," provides as 
 
 follows : 
 
 5 
 
66 SUEPLUS MONEYS IN 
 
 Section 1. All surplus moneys arising upon sales of premises 
 had in pursuance of the provisions of title fifteen, chapter eight, 
 part third, of the Revised Statutes, entitled "Of the foreclosure of 
 mortgages by advertisement," shall be subject to the jurisdiction 
 and order of the Supreme Court, which may control and dispose 
 of the same according to the rights of those interested therein, and 
 as is hereinafter provided. 
 
 § 2. Any attorney at law, or other person, who, after the passage 
 of this act, shall hold or make any sale of premises in pureuance of 
 said title, and who shall receive any surplus moneys thereon, shall 
 pay over the same within ten days from the time of Ihe receipt 
 thereof by him to the county clerk of the county in which said 
 premises or any part thereof are situated. Any attorney at law or 
 other person, who, at the time of the passage of this act, has in his 
 possession any such surplus moueys undisposed of, may, within sixty 
 days after the passage of this act, if the same shall not by that time 
 have been legally disposed of, pay over the same to the county 
 clerk of the county in which the premises sold, or any part thereof, 
 are situated. 
 
 § 3. Any person who had a lien or an interest in the mortgaged 
 premises at the time of the sale may, within twenty days after the day 
 of the sale on which said surplus moneys arase, file in said county 
 clerk's office a notice, stating that he is entitled to the whole or 
 some part thereof, and the nature and extent of his claim, and may, 
 after the expiration of the said twenty days, and upon notice to all 
 persons upon whom a notice of said sale was served, and to all per- 
 sons who have filed in said clerk's office a notice of claim to said 
 moneys, apply to the Supreme Coiirt, at a special term thereof, to 
 be held in the district in which said premises or a part thereof are 
 situated; for an order of reference, to ascertain and report the 
 amount due to him or to any other person, which is a lien upon 
 such surplus moneys, and to ascertain the priorities of the several 
 liens thereon ; and on the coming in and confirmation of the report 
 on such reference, such further order shall be made for the distribu- 
 tion of such surplus moneys as may be just. Such notice of appli- 
 cation shall be served, and the service thereof proven, is, in part 
 
MORTGAGE FORECLOSURES. 67 
 
 second, title fifth of the Code of Procedure, entitled, "Of the man- 
 ner of commencing civil actions," provided for the service of a 
 summons, and for the proof of such service. 
 
 § 4. Except as herein otherwise provided, all proceedings under 
 this act shall be such as are prescribed, from time to time, by the 
 Supreme Court relative to the surplus moneys and the distribution 
 thereof, which have arisen upon sales ordered by that court. 
 
 By chap. 706, Laws of 1870, p. 1695, vol. 2, the second section 
 of the above cited act of 1868, was amended so as to read as follows : 
 
 " ^ 2. Any attorney at law, or other person, who, after the passage 
 of this act, shall hold or make any sale of premises in pursuance of 
 said title, and who shall receive auy surplus moneys thereon, shall 
 pay over the same, within ten days from the time of the receipt 
 thereof by him, to the county clerk of the county in which said 
 premises, or any part thereof, are situated. Any attorney at law, 
 or other person, who, at the time of the passage of this act, has in 
 his possession any surplus moneys undisposed of, may pay over the 
 same to the clerk of the county in which the premises sold, or auy 
 part thereof, are situated. 
 
 " § 2. All surplus moneys that harve been paid over to auy county 
 clerk, in pursuance of the second clause of the second section of the 
 aforesaid act, and all surplus moneys that shall have been paid over 
 -to any county clerk, in pursuance of the said section, as amended by 
 this act, shall be subject to the provisions of the other sections of the 
 said act." 
 
 The proceedings under the provisions of this act cited above, require 
 that the person making the sale shall deposit the surplus moneys 
 arising upon the sale of mortgaged lands that are foreclosed by 
 advertisement, under the Revised Statutes, with the clerk of the 
 county in which said premises, or any part thereof, are situated. This 
 is similar to the provision of the Supreme Court rule (64), that the 
 referee or sheriff making the sale of lands under the judgment in a 
 civil action, shall deposit the sui-plus funds with the treasurer of the 
 county within five days after the same shall be received and ascer- 
 tainable. The moneys having been so deposited with the county clerk 
 by the person making the sale, within ten days from the time of the 
 
68 SUEPLUS MONEYS IN 
 
 receipt thei'eof by him, then any person who had a lien on or an inter- 
 est in the mortgaged premises, may, within twenty days after the 
 day of sale on which said surplus moneys arose, tile in the said 
 county clerk's office the notice provided for in section three of the 
 act. At the expiration of twenty days from the day of sale (the 
 notice above provided for having been previously filed in the county 
 clerk's office), the person filing the notice may ap^jly to the Supreme 
 Court, at a special term thereof, to be held in the district in which 
 the premises, or a part thereof, are situated, for an order of refer- 
 ence to ascertain and report the amount due to him, or to any other 
 loerson which is a lien upon such surplus moneys, and to ascertain 
 the priorities of the several liens thereon. Notice of such application 
 is to be given to all persons upon whom a notice of said sale was served, 
 and to all persons who have filed in said clerk's office a notice of 
 claim to said moneys. This notice of application, in the absence of 
 any positive statutory requirements as to its form and contents, should 
 consist of ail affidavit stating the facts upon which the application is 
 based, and of a notice of motion at the special term for the granting 
 of the order desired. The statute provides that the notice of appli- 
 cation shall be served, and the service thereof proven in the same 
 manner that the Code of Procedure provides for the service of a 
 summons, and for the proof of such service. The order of refer- 
 ence having been granted, and a hearing had before the referee, and 
 his report made, upon the coming in and confirmation of such report, 
 the Supreme Court is to make such further order for the distribution 
 of the surplus moneys as, may be just. Except as specially described 
 bj'^ the terms of the act of 1868, the proceedings are to be such as are 
 prescribed by the Supreme Court rules, relative to surplus moneys, and 
 the distribution thereof which arise upon sales ordered by that court. 
 
 The statute of 1868, above mentioned, is not applicable in cases 
 where the sale is of real estate, of which a deceased person died 
 seized. In those cases, the surplus moneys are i-equired to be paid 
 to^the surrogate of the proper county, under the^act of 1867, and 
 the acts amendatory thereof. [Vide page 61.) 
 
 A subsequent encumbrancer has no claim upon the surplus moneys 
 arising from a sale under a statute foreclosure, of which he has no 
 
MORTGAGE FORECLOSURES. 69 
 
 notice ; his lieu not being aifected by the proceedings. The land, 
 therefore, will not be discharged from the lien of his encumbrance, 
 and transferred to such surplus moneys. (Winslow v. McCall and 
 ano., 3-2 Barb. 241.) 
 
 And in Waller v. Harris, 7 Paige Ch. R. 168, it was held that 
 the surplus arising on a sale under a statute foreclosure of a mort- 
 gage, caiuiot be claimed by a subsequent encumbrancer, unless he 
 releases to the purchaser all future claim upon the equity of 
 redemption, which equity is uot foreclosed as to him. 
 
 Previous to the act of 1868, the following decisions were made in 
 regard to the dispt)sitioii of surplus moneys arising upon the sale of 
 lands under a statute foreclosure. The practice in this respect, 
 however, has been materially changed by the statute. Yet, the 
 authorities may be useful in determining the disposition of the sur- 
 plus mcmeys under the order of distribution, to be made upon the 
 , coming in and confirmation of the referee's report. Thus, under 
 the former practice, it wiis held that the surplus moneys, after the 
 mortgagee's claim has been fully satisfied, with the costs and expenses 
 allowed by law, are to be paid to the mortgagor or to his repre- 
 sentatives. (7 Paige, 250 ; ib. 168 ; 11 id. 624.) This is to be 
 understood, however, as subject to the payment of existing liens, 
 and also as subject to the provisions of the act of 1867 {ante, page 
 61). So, also, where the mortgagee owns another mortgage sub- 
 sequent to the one foreclosed, or a judgment, and there is a surplus 
 in his hands, he may apply such surplus to the payment of such 
 .subsequent mortgage or judgment. (11 Barb. 549: 13 Wend. 
 488.) And so, where the mortgage foreclosed is payable in install- 
 ments, he may apply the surplus, after satisfying the amount then 
 due, with the costs, towards the payment of the iustalhueuts there- 
 after to become due. (7 Paige, 248; ib. 211.) But if the prem- 
 ises are held subject to installments, thereafter to become due, the 
 mortgagor, it seems, is entitled to the surplus moneys after paying 
 the amount due, with costs. (Id. ; ibid.) 
 
 Where there are surplus moneys in the hands of the mortgagee 
 arising upon the foreclosure of a mortgage under the statute, and 
 two several actions have been brought by judgment creditors of the 
 
70 MORTGAGE FOEECLOSUEES. 
 
 mortgagor to obtain such surplus, to be applied on payment of their 
 respective judgments, aud a reference has been ordered, to determine 
 to whom, as between the plaintiffs, the same shall be delivered, and 
 ueither party appeals from such order or applies for an order for the 
 referee to report the evidence, the proceeding must be treated in all 
 respects like an order made in pursuance of the 76th (now, 68th) 
 rule of the Supreme Court, to settle the right to surplus moneys 
 in foreclosure cases. By omitting to appeal from such order of 
 reference, both parties consent to that method of determining their 
 respective rights. (Kerby v. Fitzgerald, 31 N. Y. 417.) 
 
 It is considered that when a person, foreclosing a mortgage by 
 statutory advertisement, retains the surplus in his hands, without 
 depositing it within the time aud in the manner specified by 
 the terms of the act of 1868, cited above, that he is still liable in 
 an action therefor to the persons having claims upon such sur- 
 plus moneys. Thus, a mortgagee who has received a surplus from 
 the purchaser upon a statute foreclosure sale of a prior mortgage, is 
 liable to a subsequent judgment creditor for the balance of a sur- 
 plus after deducting the amoimt of the second mortgage, but 
 interest on such balance runs only from the time of notice on demand 
 of the same. (Eussell v. Duflon, 4 Lansing, 399.) 
 
 Sec. 30. The surplus moneys not having been applied for, when to be 
 invested. 
 
 If such surplus, or any part thereof, shall remain in the said 
 court (Court of Chancery, now the Supreme Court) for the term of 
 three months without being applied for, the chancellor (Justice of 
 the Supreme Court) shall direct the same to be put out at interest, 
 under the direction of the court, for the benefit of the defendant, 
 his representatives or assigns, to be paid to them by the order of 
 such court. (2 E. S. 192, § 160 ; vol. 3, 6th ed. E. S. p. 199. See 
 3 Abb. Ct App. Dec. 227.) 
 
 For the regulations regarding the deposit and investment of 
 moneys, the taking of securities therefor, and the inspection of 
 county treasurers' and chamberlains' accounts in that respect, see ' 
 Eules 73, 74 aud 75. 
 
APPENDIX. 
 
 Chancery Rule 136. 
 
 Any person claiming the surplus moneys arising upon a master's 
 sale of mortgaged premises, or any part of such surplus moneys, 
 may, either in his own name, or by his solicitor, give to the master, 
 ft any time before the filing of his report of sale, a written notice 
 of such claim, stating therein the nature and extent of his claim, 
 and the place of residence of himself or of his solicitor. And the 
 master shall annex to and file with his report of the sale, all notices 
 so received by him : or a notice of such claim upon the surplus 
 moneys, may be filed by the claimant with the register, assistant 
 register or clerk, where the report is filed, and the surplus moneys 
 are paid by the master. On the coming in and confirmation of the 
 report of the sale, any party to the suit, or any person not a party, 
 who had a lien on the mortgaged premises at the time of the mas- 
 ter's sale, either by judgment or decree, upon filing with the regis- 
 ter, assistant register or clerk, where such surplus moneys are 
 deposited, a notice stating that he is entitled to such surplus moneys, 
 or some part thereof, and the nature and extent of his claim, may 
 have an order of course referring it to a master to ascertain and 
 report the amount due to him, or to any other person, which is a 
 lien upon such surplus moneys, and to ascertain the priorities of the 
 several liens thereon, to the end that, on the coming in and confirm- 
 ation of the report on such reference, such further order or decree 
 may be made for the distribution of such surplus moneys as may be 
 
72 APPENDIX. 
 
 just. Every party who appeared in the cause, and every person who 
 shall have delivered such written notice of his claim to the master 
 who made the sale, or who shall have filed such notice with the 
 register, assistant register or clerk, where the surplus moneys are 
 deposited, previous to the entry of the order of I'efereuce, shall be 
 entitled to service of a summons to attend the master on such refer- 
 ence, and to the usual notices of subsequent proceedings relative to 
 such surplus. But if such claimant has not appeared, or made his 
 claim by a solicitor of this court, the summons or notice may be 
 served, by putting the same into the post-office, directed to the 
 claimant, at his place of residence, as stated in the notice of his 
 claim. xVuy person making a claim to such surplus moneys, and 
 who shall fail to establish his claim on the reference before the mas- 
 ter, may be charged with such costs as the other parties have been 
 subjected to by reason of such claim ; and the parties succeeding on 
 such reference may be allowed such costs as the court may deem 
 reasonable. But no costs unnecessarily incurred on such reference, 
 or previous' thereto, by any of the parties, shal^ be allowed in taxa- 
 tion, or paid out of such surplus. 
 
 Chanceey Rule 100. 
 
 Where a matter is referred to a master, to examine and report 
 thereon, on bringing the decree or order into his office, he shall 
 assign a day and place for hearing the parties, and give to the party 
 bringing in such decree or order, a summons for the adverse parly 
 to attend at the day and place so appointed. The summons shall be 
 served on the adverse party or his solicitor, at such time, previous to 
 the day appointed for hearing,- as the master may deem reasonable 
 and direct, taking into consideration the nature of the mattei-s to be 
 examined, and the residence of the parties. But the time of service 
 unless otherwise ordered by the court, shall not be less than two 
 days, where the solicitor of the adverse party resides in the city or 
 
APPENDIX. 73 
 
 town where the hearing is to take place, and not less than four days 
 where he resides elsewhere, not exceeding fifty miles from the place 
 of hearing, nor less than six days if over fifty and not exceeding one 
 hundred miles ; and not less than eight days, where he resides more 
 than one hundred miles from the place of hearing. 
 
 Chancery Eule 101. 
 
 If the party who is entitled to prosecute such decree or order of 
 reference, does not procure and serve such simimons within thirty 
 days after the decree or order is entered, any other party or peison 
 interested in the matter of the reference, shall be at liberty to apply 
 to the court, by motion or petition, to expedite the prosecution of 
 the decree or order. And after the proceedings have been com- 
 menced by the service of a summons to attend before the master, if 
 the party entitled to prosecute such decree or order does not pro- 
 ceed with due diligence, the master shall be at liberty, upon the 
 application of any other pei-son interested, either as a party to the 
 suit, or as coming in to prove his debt or establish a claim under the 
 decree or order, to commit to him the prosecution of the reference. 
 
74 APPENDIX. 
 
 APPENDIX TO EULE 76 OF THE COUETS. 
 
 Annuity Table. 
 
 A table corresponding with the Northampton tables referred to in 
 the 76th rule, showing the value of an annuity of one dollar, at six 
 per cent., on a single life, at any age from one year to ninety-four 
 inclusive. 
 
 
 No. of years 
 
 
 No. of years' 
 
 
 No. of years' 
 purchase 
 
 
 N6. of years' 
 
 
 purchase 
 
 
 purchase 
 
 
 
 purchase 
 
 Age. 
 
 Ine anDuity 
 
 Age. 
 
 the annuity 
 
 Age. 
 
 the annuity 
 
 Age. 
 
 the annuity 
 
 
 is worth. 
 
 
 is worth. 
 
 
 is worth. 
 
 
 is worth. 
 
 1 
 
 10.107 
 
 25 
 
 12.063 
 
 49 
 
 9.563 
 
 73 
 
 4.781 
 
 •i, 
 
 11 724 
 
 26 
 
 H.992 
 
 50 
 
 9.417 
 
 74 
 
 4.565 
 
 3 
 
 l-i.348 
 
 27 
 
 11.917 
 
 51 
 
 9.273 
 
 75 
 
 4.354 
 
 4 
 
 12.769 
 
 28 
 
 11.841 
 
 52 
 
 9.129 
 
 76 
 
 4.154 
 
 5 
 
 12.962 
 
 29 
 
 11.763 
 
 53 
 
 8.980 
 
 77 
 
 3.952 
 
 6 
 
 13.156 
 
 30 
 
 11.682 
 
 54 
 
 8.827 
 
 78 
 
 3.742 
 
 7 
 
 13.275 
 
 31 
 
 11.. ^98 
 
 55 
 
 8.670 
 
 79 
 
 3.514 
 
 8 
 
 13.337 
 
 32 
 
 11.512 
 
 56 
 
 8.509 
 
 80 
 
 3.281 
 
 9 
 
 13.335 
 
 33 
 
 11.423 
 
 57 
 
 8.343 
 
 81 
 
 '3.156 
 
 10 
 
 13.285 
 
 34 
 
 11.331 
 
 58 
 
 8.173 
 
 82 
 
 2.926 
 
 11 
 
 13.212 
 
 35 
 
 , 11.236 
 
 59 
 
 7.999 
 
 83 
 
 2.713 
 
 12 
 
 13.130 
 
 36 
 
 11.137 
 
 60 
 
 7.820 
 
 84 
 
 2.551 
 
 13 
 
 13.044 
 
 37 
 
 11.035 
 
 61 
 
 7.637 
 
 85 
 
 2.402 
 
 14 
 
 12.953 
 
 38 
 
 10.929 
 
 62 
 
 7.449 
 
 86 
 
 2.266 
 
 15 
 
 12.857 
 
 39 
 
 10.819 
 
 63 
 
 7.253 
 
 87 
 
 2.138 
 
 16 
 
 12.755 
 
 40 
 
 10.705 
 
 64 
 
 7.052 
 
 88 
 
 2.031 
 
 17 
 
 12.655 
 
 41 
 
 10.589 
 
 65 
 
 6.841 
 
 89 
 
 1.882 
 
 18 
 
 12.562 
 
 42 
 
 10,473 
 
 66 
 
 6.625 
 
 90 
 
 1.689 
 
 19 
 
 12.477 
 
 43 
 
 10.356 
 
 67 
 
 6.405 
 
 91 
 
 1.422 
 
 20 
 
 12.398 
 
 44 
 
 10.235 
 
 68 
 
 . 6.179 
 
 92 
 
 1.136 
 
 21 
 
 12.329 
 
 45 
 
 10.110 
 
 69 
 
 5.949 
 
 93 
 
 .806 
 
 22 
 
 12.265 
 
 46 
 
 9.980 
 
 70 
 
 5.716 
 
 94 
 
 .518 
 
 23 
 
 12.200 
 
 47 
 
 9.846 
 
 71 
 
 5.479 
 
 
 
 24 
 
 12.132 
 
 48 
 
 9.707 
 
 72 
 
 5.241 
 
 
 
 EULES FOE COMPUTING THE VALUE OF THE LIFE 
 ESTATE OE ANNUITY. 
 
 Calculate the interest at six per cent, for one year, upon the sum 
 to the income of which the person is entitled. Multiply this interest 
 by the number of years' purchase set opposite to the person's age in 
 the table, and the product is the gross value of the life estate of such 
 person in said sum. 
 
APPENDIX. 75 
 
 Examples. 
 
 Suppose a widow's age is 37 ; and she is entitled to dower in real 
 estate worth $350,75. One^third of this is $116.91|. Interest on 
 $116.91 one year at six per cent, (as fixed by 76th rule) is $7.01. 
 The number of years' purchase which an annuity of one dollar is 
 worth, at the age of 37, as appears by the table, is 11 years and 
 x^^T parts of a year, which, multiplied bj' $7.01, the income for one 
 year, gives $77.35, and a fraction, as the gross value of her right of 
 dower. 
 
 Suppose a man, whose age is 50, is tenant by the courtesy in the 
 whole of an estate worth $9,000. The annual interest on the sum, 
 at six per cent., is $540. The number of years' purchase which an 
 annuity of one dollar is worth, at the age of 50, as per table, is 
 ^z'lsVsi parts of a year, which, multiplied by $540, the Value of one 
 year, gives $5,085.18 as the gross value of his life estate in the 
 premises, or the proceeds thereof. 
 
 Note. — The values in this table are calculated on the supposition that the annui- 
 ties are payable yearly ; if payable half-yearly, one-fifth of a year's purchase 
 should be added to those values. 
 
76 
 
 APPENDIX. 
 
 VALUE OF THE 
 
 Table, showing the present vahie of the Right of Dower of a Married 
 
 In the following tuble, aa given by Mr. Bowditoh, the age of the husband, like. that of the 
 wife, begins with 16 years, and embraces all the even numbers to the age of 90 years, inclusire; 
 but with respect to the husband, the ages 16, 18, 20, 24, 28, 78, 82, 86, 88 and 90, are here 
 omitted, in order to reduce the table to the width of the page. The ages near the two 
 extremes are those which will be most rarely wanted in such a table. 
 
 Age of the Husband. 
 
 tto 
 
 16 
 
 22 
 .S.68 
 
 26 
 4.10 
 
 30 
 
 4. .58 
 
 32 
 4.85 
 
 34 
 6.14 
 
 36 
 5.43 
 
 38 
 5.73 
 
 40 
 6.06 
 
 42 
 6.42 
 
 44 
 6.81 
 
 46 
 7.26 
 
 48 
 7.74 
 
 60 
 
 52 
 
 64 
 9.93 
 
 16 
 
 8.42 
 
 9.18 
 
 18 
 
 3.i)7 
 
 3.9S 
 
 4., 61 
 
 4.76 
 
 6.03 
 
 5.29 
 
 5.65 
 
 5.99 
 
 6.36 
 
 6.73 
 
 7.08 
 
 7.57 
 
 8.21 
 
 8.96 
 
 9.71 
 
 18 
 
 20 
 22 
 
 3.46 
 3.33 
 
 3.88 
 3.77 
 
 4.38 
 4.25 
 
 4.64 
 
 4.92 
 
 6.15 
 
 6.49 
 
 6.86 
 
 6.22 
 
 6.60 
 
 6.90 
 
 7.38 
 
 8.00 
 
 8.74 
 
 9.49 
 
 20 
 
 4.46 
 
 4.74 
 
 5.00 
 
 6'.33 
 
 5.69 
 
 6.03 
 
 6.43 
 
 6.72 
 
 7.19 
 
 7.79 
 
 8.52 
 
 9.27 
 
 22 
 
 24 
 
 3.23 
 
 3.65 
 
 4.11 
 
 4.32 
 
 4.57 
 
 4.85 
 
 5.17 
 
 5.62 
 
 6.85, 
 
 6.18 
 
 6.54 
 
 6.99 
 
 7.68 
 
 8.30 
 
 9.0^ 
 
 24 
 
 26 
 
 3.12 
 
 3.53 
 
 3.97 
 
 4.18 
 
 4.42 
 
 4.70 
 
 6.01 
 
 6.36 
 
 6.66 
 
 6.98 
 
 6.36 
 
 6.79 
 
 7.37 
 
 8.08 
 
 8.83 
 
 26 
 
 28 
 
 3.01 
 
 3.41 
 
 3.83 
 
 4.03 
 
 4.26 
 
 4.64 
 
 4.84 
 
 5.17 
 
 6.47 
 
 5.78 
 
 6.17 
 
 6.69 
 
 7.16 
 
 7.85 
 
 8.60 
 
 28 
 
 30 
 32 
 
 2.90 
 2.79 
 
 3.28 
 
 3.69 
 3.55 
 
 3.88 
 
 4.10 
 3.94 
 
 4.38 
 4.21 
 
 4.66 
 4.48 
 
 4.99 
 4.80 
 
 6.28 
 5.09 
 
 6.68 
 6.38 
 
 5.96 
 
 5.74 
 
 6.38 
 
 6.93 
 6.70 
 
 7.61 
 7.36 
 
 8.35 
 8.08 
 
 30 
 32 
 
 3.16 
 
 3.73 
 
 6.16 
 
 34 
 
 2.68 
 
 3.02 
 
 3.40 
 
 3.67 
 
 3.78 
 
 4.03 
 
 4.30 
 
 4.60 
 
 4.88 
 
 5.17 
 
 6.61 
 
 5.92 
 
 6.46 
 
 7.10 
 
 7.80 
 
 34 
 
 36 
 
 2.66 
 
 2.89 
 
 3.26 
 
 3.41 
 
 3.61 
 
 3.85 
 
 4.11 
 
 4.40 
 
 4.66 
 
 4.94 
 
 5.26 
 
 6.66 
 
 6.18 
 
 6.83 
 
 7.61 
 
 36 
 
 38 
 
 2.44 
 
 2.76 
 
 3.10 
 
 3.25 
 
 3.44 
 
 3.67 
 
 3.92 
 
 4.19 
 
 4.44 
 
 4.70 
 
 6.00 
 
 5.39 
 
 6.90 
 
 6.63 
 
 7.21 
 
 38 
 
 40 
 42 
 
 2.32 
 2.20 
 
 2.62 
 2.48 
 
 2.96 
 2.79 
 
 3.09 
 2.93 
 
 3.27 
 3.10 
 
 3.49 
 3.. 30 
 
 3.72 
 3.62 
 
 3.98 
 3.76 
 
 4.22 
 
 4.46 
 
 4.74 
 
 5.11 
 
 5.61 
 
 6.22 
 
 6.89 
 
 40 
 
 3.99 
 
 4.22 
 
 4.48 
 
 4.83 
 
 5.31 
 
 5.90 
 
 6.56 
 
 42 
 
 44 
 
 2.07 
 
 2.34 
 
 2.63 
 
 2.76 
 
 2.92 
 
 3.11 
 
 3.32 
 
 3.64 
 
 3.75 
 
 3.98 
 
 4.22 
 
 4.55 
 
 4.99 
 
 5.67 
 
 6.21 
 
 44 
 
 46 
 
 1.94 
 
 2.21 
 
 2.47 
 
 2.59 
 
 2.73 
 
 2.92 
 
 3.12 
 
 3.32 
 
 3.60 
 
 3.71 
 
 3.96 
 
 4.26 
 
 4.67 
 
 5.22 
 
 5.84 
 
 46 
 
 48 
 
 1.86 
 
 2.10 
 
 2.31 
 
 2.42 
 
 2.54 
 
 2.76 
 
 2.91 
 
 3.10 
 
 3.26 
 
 3.44 
 
 3.71 
 
 3.97 
 
 4.36 
 
 4.86 
 
 6.45 
 
 48 
 
 50 
 
 1.71 
 
 1.92 
 
 2.15 
 
 2.24 
 
 2.35 
 
 2.66 
 
 2.71 
 
 2.87 
 
 3.00 
 
 3.17 
 
 3.49 
 
 3.75 
 
 4.03 
 
 4.48 
 
 5.06 
 
 60 
 52 
 
 52 
 
 1.64 
 
 1.74 
 
 1.95 
 
 2.06 
 
 2.18 
 
 2.31 
 
 2.45 
 
 2.60 
 
 2.76 
 
 2.90 
 
 3.18 
 
 3.46 
 
 3.78 
 
 4.12 
 
 4.63 
 
 64 
 
 1.40 
 
 1.58 
 
 1.77 
 
 1.87 
 
 1.97 
 
 2.08 
 
 2.21 
 
 2. .34 
 
 2.48 
 
 2.63 
 
 2.81 
 
 3.05 
 
 3.. 37 
 
 3.77 
 
 4.21 
 
 54 
 
 56 
 
 L.'iO 
 
 1.44 
 
 1.61 
 
 1.70 
 
 1.79 
 
 1.89 
 
 1.99 
 
 2.10 
 
 2.22 
 
 2.35 
 
 2.50 
 
 2.72 
 
 3.00 
 
 3.36 
 
 3.80 
 
 56 
 
 68 
 
 1.17 
 
 1.32 
 
 1.48 
 
 1.66 
 
 1.64 
 
 1.72 
 
 1.81 
 
 1.90 
 
 2.00 
 
 2.11 
 
 2.24 
 
 2.. 39 
 
 2.69 
 
 2.87 
 
 3.27 
 
 68 
 
 HO 
 62 
 
 1.03 
 0.91 
 
 1.17 
 1.03 
 
 1.32 
 1.16 
 
 1.40 
 
 1.48 
 
 1.56 
 
 1.65 
 
 1.74 
 
 1.84 
 
 1.95 
 
 2.07 
 
 2.20 
 
 2.35 
 
 2.57 
 
 2.89 
 
 60 
 
 1.23 
 
 1.30 
 
 1.37 
 
 1.46 
 
 1.64 
 
 1.63 
 
 1.73 
 
 1.85 
 
 1.99 
 
 2.17 
 
 2.38 
 
 2.64 
 
 62 
 
 64 
 
 0.82 
 
 0.92 
 
 1.03 
 
 1.09 
 
 1.16 
 
 1.23 
 
 1.30 
 
 1.37 
 
 1.44 
 
 1.61 
 
 1.61 
 
 1.75 
 
 1.93 
 
 2.15 
 
 2.41 
 
 64 
 
 66 
 
 0.74 
 
 0.82 
 
 0.92 
 
 0.97 
 
 1.02 
 
 1.08 
 
 1.13 
 
 1.19 
 
 1.25 
 
 1..31 
 
 1.37 
 
 1.47 
 
 1.63 
 
 1.85 
 
 2.12 
 
 66 
 
 68 
 
 0.65 
 
 0.73 
 
 0.82 
 
 U.86 
 
 0.91 
 
 0.96 
 
 1. 01 
 
 1.06 
 
 1.10 
 
 1.16 
 
 1.20 
 
 1.25 
 
 1.36 
 
 1.54 
 
 1.79 
 
 68 
 
 70 
 
 72 
 
 0.64 
 0.44 
 
 0.62 
 0.50 
 
 0.70 
 0.57 
 
 0.74 
 
 0.78 
 
 0.83 
 
 0.87 
 
 0.92 
 
 0.97 
 
 1.02 
 
 1.07 
 
 1.12 
 
 1.17 
 
 1.27 
 
 1.43 
 
 70 
 
 0.61 
 
 0.66 
 
 0.69 
 
 0.73 
 
 0.77 
 
 0.81 
 
 0.85 
 
 a. 90 
 
 0.961.03 
 
 1.11 
 
 1.22 
 
 72 
 
 74 
 
 0.38 
 
 0.43 
 
 0.49 
 
 0.62 
 
 0.55 
 
 0.58 
 
 0.61 
 
 0.64 
 
 0.68 
 
 0.71 
 
 0.75 
 
 0.860.89 
 
 0.9R 
 
 1.08 
 
 74 
 
 76 
 
 0.35 
 
 0.38 
 
 0.42 
 
 U.45 
 
 0.48 
 
 0.51 
 
 0.63 
 
 0.66 
 
 0.68 
 
 0.60 
 
 0.63 
 
 0.67 0.73 
 
 0.82 
 
 0.94 
 
 76 
 
 78 
 
 0.30 
 
 0.34 
 
 0.38 
 
 0.40 
 
 0.43 
 
 0.46 
 
 0.47 
 
 0.49 
 
 0.50 
 
 0.52 
 
 0.,53 
 
 0.560.60 
 
 n.6S 
 
 0.79 
 
 78 
 
 80 
 
 si 
 
 0.24 
 0.20 
 
 0.28 
 
 0.32 
 
 a.26 
 
 U.34 
 
 0.36 
 
 0.38 
 
 0.41 
 
 0.43 
 
 0.44 
 
 0.46 
 
 0.47 
 
 0.48|0.60 
 
 0.65 
 
 0.64 
 
 80 
 
 0.22 
 
 0.27 
 
 0.29 
 
 0.32 
 
 0.34 
 
 0.36 
 
 0.i)8 
 
 0.40 
 
 0.41 
 
 0.430.46 
 
 0.47 
 
 0.6? 
 
 82 
 
 84 
 
 0.17 
 
 0.18 
 
 0.21 
 
 0.23 
 
 0.24 
 
 0.26 
 
 0.27 
 
 0.29 
 
 0.30 
 
 0.32 
 
 0.34 
 
 0.37,0.40 
 
 0.42 
 
 0.45 
 
 84 
 
 86 
 
 0.14 
 
 0.16 
 
 0.18 
 
 0.19 
 
 0.20 
 
 0.21 
 
 0.22 
 
 0.23 
 
 0'.26 
 
 0.26 
 
 0.27 
 
 0.29,0.32 
 
 0.,36 
 
 0.40 
 
 86 
 
 88 
 
 0.13 
 
 0.16 
 
 0.17 
 
 0.18 
 
 0.19 
 
 0.20 
 
 0.21 
 
 0.21 
 
 0.22 
 
 0.22 
 
 0.23 
 
 0.240.26 
 
 0.30 
 
 0..36 
 
 88 
 
 90 
 
 0.11 
 
 0.13 
 
 0.15 
 
 0.16 
 
 0.17 
 
 0.18 
 
 0.19 
 
 0.20 
 
 0.21 
 
 0.21 
 
 0.22 
 
 0. -2210. 23 
 
 0.26 
 
 0.29 
 
 90 
 
 
 22 
 
 26 
 
 30 
 
 32 
 
 34 
 
 36 
 
 38 
 
 4p 
 
 42 
 
 44 
 
 46 
 
 48 
 
 60 
 
 62 
 
 54 
 
 
 Age of the Husband. 
 
APPENDIX. 
 
 T7 
 
 RIGHT OF DOWEE. 
 
 Woman, in an estate worth $100, provided she survives her Husband.* 
 
 The table is to be entered at the top with the age of the husband, and at the side with the 
 age of the wife ; under the former and opposite to the latter is the present value of the 
 dower-right in an estate worth one hundred dollars. 
 
 Thus, if the age of the husband be 60 years, and that of the wife 32 years, the present 
 value of the dower in $100 is $6.70 ; so that if the estate be worth $10,000, the present value 
 of the dower-right would be $670. — American Almanac, 1856, pp. 230-31. 
 
 Age of the Husband. 
 
 
 
 56 
 
 58 
 
 60 
 
 62 
 
 64 
 
 66 
 
 68 
 
 70 
 
 72 
 
 74 
 
 76 
 
 80 
 
 84 
 
 
 
 16 
 
 io:69 
 
 11.62 
 
 12.48 
 
 13.20 
 
 13.8614.67 
 
 15.63 
 
 16.62 
 
 17.74 
 
 18.63 
 
 19.27 
 
 20.78 
 
 22.10 
 
 16 
 
 
 18 
 
 10.51 
 
 11. 4C 
 
 12.24 
 
 12.96 
 
 13.6314.45 
 
 15.39 
 
 16.41 
 
 17.61 
 
 18.31 
 
 19.03 
 
 20.48 
 
 21.86 
 
 18 
 
 
 20 
 
 10.30 
 
 11.18 
 
 12.03 
 
 12.72 
 
 13.4014.22 
 
 15.15 
 
 16.18 
 
 17.26 
 
 18.08 
 
 18.78 
 
 20.18 
 
 21.62 
 
 20 
 
 
 22 
 
 10.09 
 
 10.95 
 
 11.80 
 
 12.48 
 
 13.17 
 
 13.98 
 
 14.90 
 
 15.93 
 
 16.99 
 
 17.86 
 
 18.56 
 
 19.87 
 
 21.34 
 
 22 
 
 
 24 
 
 9.86 
 
 10.71 
 
 11.56 
 
 12.23 
 
 12.94 
 
 13.73 
 
 14.63 
 
 15.66 
 
 16.74 
 
 17.60 
 
 18.25 
 
 19.i)7 
 
 21.05 
 
 24 
 
 
 26 
 
 9.62 
 
 10.47 
 
 11.30 
 
 11.97 
 
 12.69 
 
 13.46 
 
 14.36 
 
 16.37 
 
 16.46 
 
 17. .S4 
 
 17.96 
 
 19.26 
 
 20.77 
 
 26 
 
 
 28 
 
 9.37 
 
 10.22 
 
 11.03 
 
 11.70 
 
 12.42 
 
 13.18 
 
 14.06 
 
 16.06 
 
 16.15 
 
 17.06 
 
 17.66 
 
 18.96 
 
 20.47 
 
 28 
 
 
 30 
 
 9.11 
 
 9.96 
 
 10.76 
 
 11.42 
 
 12.13 
 
 12.88 
 
 13.74 
 
 14.74 
 
 15.82 
 
 16.76 
 
 17. .34 
 
 18.65 
 
 20.14 
 
 30 
 
 
 32 
 
 8.84 
 
 9.69 
 
 10.46 
 
 11.13 
 
 11.82 
 
 12.67 
 
 13.42 
 
 14.41 
 
 16.48 
 
 16.40 
 
 17.00 
 
 18.32 
 
 19.78 
 
 32 
 
 
 34 
 
 8.56 
 
 9.4C 
 
 10.15 
 
 10.82 
 
 11.50 
 
 12.25 
 
 13.09 
 
 14.07 
 
 15.12 
 
 16.01 
 
 16.66 
 
 17.96 
 
 19.39 
 
 34 
 
 
 36 
 
 8.26 
 
 9.08 
 
 9.82 
 
 l0.4iJ 
 
 11.16 
 
 11.92 
 
 12.76 
 
 13.71 
 
 14.74 
 
 16.62 
 
 16.28 
 
 17.57 
 
 19.00 
 
 36 
 
 
 38 
 
 7.95 
 
 8.75 
 
 9.48 
 
 10.13 
 
 10.80 
 
 11.67 
 
 12.39 
 
 13.33 
 
 U..34 
 
 15.22 
 
 15.89 
 
 17.16 
 
 18. ,69 
 
 38 
 
 
 40 
 
 7.62 
 
 8.41 
 
 9.13 
 
 9.76 
 
 10.42 
 
 11.19 
 
 12.00 
 
 12.93 
 
 13.93 
 
 14.80 
 
 16.47 
 
 16.72 
 
 18.J6 
 
 40 
 
 
 42 
 
 7.27 
 
 8.04 
 
 8.76 
 
 9.37 
 
 10.02 
 
 10.78 
 
 U.68 
 
 12.50 
 
 13.52 
 
 14. ,37 
 
 15.03 
 
 16.26 
 
 17.70 
 
 42 
 
 
 44 
 
 6.91 
 
 7.65 
 
 8.37 
 
 8.96 
 
 9.60 
 
 10.34 
 
 11.13 
 
 12.04 
 
 13.08 
 
 13.92 
 
 14.56 
 
 15.76 
 
 17.22 
 
 44 
 
 o 
 
 46 
 
 6.53 
 
 7.25 
 
 7.95 
 
 8.52 
 
 9.15 
 
 9.87 
 
 10.65 
 
 11.54 
 
 12.69 
 
 13.52 
 
 14.06 
 
 15.22 
 
 16.70 
 
 46 
 
 g 
 
 « 
 
 48 
 
 6.10 
 
 6.84 
 
 7.49 
 
 8.04 
 
 8.66 
 
 9.37 
 
 10.15 
 
 11.00 
 
 12.03 
 
 12.72 
 
 13.50 
 
 14.65 
 
 16.10 
 
 48 
 
 60 
 
 5.64 
 
 6.17 
 
 7.01 
 
 7.62 
 
 8.12 
 
 8.83 
 
 9.61 
 
 10.43 
 
 11. .39 
 
 11.90 
 
 12.87 
 
 14.05 
 
 15.41 
 
 50 
 
 ^ 
 
 52 
 
 5.28 
 
 5.66 
 
 6.22 
 
 6.97 
 
 7 54 
 
 8.24 
 
 9.02 
 
 9.82 
 
 10.68 
 
 11.27 
 
 12.16 
 
 13.32 
 
 14.63 
 
 62 
 
 o 
 
 54 
 
 4.78 
 
 5.18 
 
 5.72 
 
 6.30 
 
 6.92 
 
 7.59 
 
 8.. 37 
 
 9.18 
 
 9.97 
 
 10 72 
 
 11. .37 
 
 12.81 
 
 13.77 
 
 54 
 
 M] 
 
 56 
 
 4..30 
 
 4.81 
 
 8.33 
 
 5.85 
 
 6.37 
 
 6.89 
 
 7.68 
 
 8.48 
 
 9.26 
 
 9.62 
 
 10.50 
 
 12.01 
 
 13.12 
 
 66 
 
 < 
 
 58 
 
 3.7S 
 
 4.39 
 
 •4.96 
 
 5.50 
 
 6.00 
 
 6.46 
 
 6.S9 
 
 7.77 
 
 8.56 
 
 8.64 
 
 9.37 
 
 10.90 
 
 12.06 
 
 68 
 
 
 60 
 
 3.31 
 
 3.83 
 
 4.41 
 
 4.95 
 
 6.47 
 
 5.98 
 
 6.48 
 
 6.98 
 
 7.85 
 
 8.08 
 
 8.69 
 
 9.99 
 
 11.23 
 
 60 
 
 
 62 
 
 2.97 
 
 3.. 36 
 
 3.82 
 
 4.33 
 
 4.87 
 
 5.43 
 
 6.00 
 
 6.57 
 
 7.16 
 
 7.72 
 
 8 28 
 
 9..S6 
 
 10. .37 
 
 62 
 
 
 64 
 
 2.70 
 
 3.03 
 
 3.39 
 
 3.78 
 
 4.22 
 
 4.71 
 
 6.25 
 
 5.84 
 
 6.47 
 
 7.14 
 
 7.76 
 
 8.84 
 
 9.70 
 
 64 
 
 
 66 
 
 2.43 
 
 2.74 
 
 3.06 
 
 3.39 
 
 3.74 
 
 4.12 
 
 4.. 16 
 
 6.04 
 
 6.60 
 
 6.22 
 
 6.88 
 
 8.06 
 
 9.02 
 
 66 
 
 
 68 
 
 2.09 
 
 2.44 
 
 2.77 
 
 3.07 
 
 3.38 
 
 3.69 
 
 4.02 
 
 4.39 
 
 4.82 
 
 5.32 
 
 6.89 
 
 7.08 
 
 8.08 
 
 68 
 
 
 70 
 
 1.67 
 
 1.98 
 
 2.36 
 
 2.70 
 
 3.01 
 
 3.32 
 
 3.65 
 
 3.94 
 
 4.27 
 
 4.66 
 
 5.09 
 
 6.15 
 
 7.12 
 
 70 
 72 
 
 
 72 
 
 1..S6 
 
 1.57 
 
 1.86 
 
 2.17 
 
 2.60 
 
 2.84 
 
 3.18 
 
 3.53 
 
 3.88 
 
 4.24 
 
 4.61 
 
 5.38 
 
 6.23 
 
 
 74 
 
 1.20 
 
 1.35 
 
 1.64 
 
 1.77 
 
 2.03 
 
 2.33 
 
 2.67 
 
 3.05 
 
 3.43 
 
 3.77 
 
 4.11 
 
 4.80 
 
 5.4^ 
 
 74 
 
 
 76 
 
 1.09 
 
 1.25 
 
 1.42 
 
 1.59 
 
 1.76 
 
 1.94 
 
 2.16 
 
 2.43 
 
 2.76 
 
 3.16 
 
 3.60 
 
 4.35 
 
 5.03 
 
 76 
 
 
 78 
 
 0.94 
 
 1.12 
 
 1.29 
 
 1.45 
 
 1.60 
 
 1.75 
 
 1.90 
 
 2.08 
 
 2.31 
 
 2.61 
 
 2.98 
 
 3.78 
 
 4.46 
 
 78 
 
 
 80 
 
 0.77 
 
 0.94 
 
 1.10 
 
 1.26 
 
 1.41 
 
 1.56 
 
 1.71 
 
 1.87 
 
 2.06 
 
 2.28 
 
 2.64 
 
 3.20 
 
 3.85 
 
 80 
 
 82 
 
 
 82 
 
 0.60 
 
 0.71 
 
 0.84 
 
 1.00 
 
 1.16 
 
 1.33 
 
 1.60 
 
 1.68 
 
 1.87 
 
 2.07 
 
 2.29 
 
 2.75 
 
 3.28 
 
 
 84 
 
 O..^ 
 
 0.58 
 
 0.68 
 
 0.79 
 
 0.90 
 
 1.03 
 
 1.18 
 
 1.36 
 
 1.67 
 
 1.81 
 
 2.04 
 
 2.46 
 
 2.80 
 
 84 
 
 
 86 
 
 0.45 
 
 0.51 
 
 0.58 
 
 0.66 
 
 0.74 
 
 0.83 
 
 0.94 
 
 1.08 
 
 1.26 
 
 1.44 
 
 1.66 
 
 2.09 
 
 2.48 
 
 86 
 
 
 88 
 
 0.41 
 
 0.48 
 
 0.55 
 
 0.62 
 
 0.69 
 
 0.76 
 
 0.83 
 
 0.92 
 
 1.04 
 
 1.20 
 
 1.39 
 
 1.79 
 
 2.17 
 
 88 
 
 
 90 
 
 0.35 
 
 0.42 
 
 0.51 
 
 O.60 
 
 0.68 
 
 0.75 
 
 0.81 
 
 0.87 
 
 0.96 
 
 1.08 
 
 1.23 
 
 1.57 
 
 1.92 
 
 90 
 
 
 
 56 
 
 68 
 
 60 
 
 62 
 
 64 
 
 66 
 
 68 
 
 70 
 
 72 
 
 74 
 
 76 
 
 80 
 
 84 
 
 Age of the Husband. 
 
 ' By the Carlisle Tables. 
 
rORMS 
 
 NUMBER 1. 
 
 Notice of Claim to Surplus Moneys. 
 SUPREME COURT. 
 
 A. B. 
 
 agt. 
 C. D. and othei"S. 
 
 J 
 
 To E. C. R., Esq., 
 
 Clerk of Bensselaer Cownly. 
 
 Take notice, that the undersigned is entitled to and claims the 
 surplus moneys arising on the sale of the mortgaged premises had 
 under the decree in the above entitled action, which decree was 
 entered in your office on the day of _^ , 187 . The 
 
 claim of the undei-signed is for % with interest thereon from 
 
 the day of , 185 , by virtue of a lien under a 
 
 mortgage executed by the defendant C. D. and M. D., his wife, to 
 E. F., the subscriber, while the said C. D. was the owner of the 
 equity of redemption of the mortgaged premises, and before the 
 commencement of this action, and on the day of , 
 
 18 , and recorded in your office on the day of , 
 
 18 , in Book of Mortgages No. , at page , which lien is 
 next in priority after the mortgage of the plaintiff in this action (or. 
 
80 
 
 FORMS. 
 
 hy virtue of a lien under a judgment against O. D., the above named 
 defendant, in favor of the subscriber for $ , which, judgment 
 
 was docketed in your office on the day of , 187 ). 
 
 E. F., 
 
 Claimant. 
 Dated Troy, N. Y., the day of , 187 
 
 G. H., 
 Attorney for Claimant, 
 
 Troy, N. Y. 
 
 [If the claim is filed by the claimant without the aid of an attor- 
 ney, he should state his place of residence in the notice lof his claim.] 
 
 NUMBEE 2. 
 
 Affidavit far Order of Ref&'mce as to Surplus Moneys. 
 SUPREME COURT. 
 
 A. B. 
 
 agt. 
 C. D., et al. 
 
 Rensselaek County, ss. : 
 
 W. B., of the city of Troy, in said county, being duly sworn, 
 says that he is one of the defendants in the above entitled action ; 
 that this action was brought to foreclose a mortgage upon land sit^ 
 uate in the county of Albany, in this State ; that judgment was 
 entered in said action with the Clerk of Albany county, on the 
 day of , 187 , and that a sale of the mortgaged lands 
 
 has been made under the direction of this court, and that the claim 
 of the plaintiff iu this action has been paid, and that there remains a 
 surplus pf $ over and above the moneys due on said mortgage 
 
 and costs of this action, which surplus has been brought into this 
 
FORMS. 81 
 
 court subject to the order thereof, and that the same is now in the 
 custody of the Treasurer of Albany county ; that the referee who 
 made the sale of the lands under the decree in this action, has filed 
 his report of sale thci'eofNand that the same has been confirmed. 
 
 That this deponent has a claim on the said surplus moneys, 
 amounting to the sum of $ , and interest thereon from the 
 
 day of , 187 , which claim consists of a mort- 
 
 gage made to deponent on the day of ,187 , 
 
 by the defendant C. D. and his wife ; he, the said C. D., then being 
 the owner in fee of the said mortgaged lands Yor, by virtue, of a lien 
 under a judgment against G. D., the above named defendant, in favor 
 of this deponent for % , which judgment was docketed in the 
 
 office of the Olerk of Albany county, on the day of , 
 
 187 ). 
 
 That on the day of , 187 , this deponent 
 
 filed with the Clerk of the county of Albany a written notice, stating 
 that he is entitled to said surplus moneys, and also stating therein 
 the nature and extent of his claim, and that a copy of said notice of 
 claim is hereto annexed. 
 
 Defendant further says that from the official search made in the 
 progress of the above entitled action, and which seai'ch is filed with 
 the judgment roll herein, the following unsatisfied liens appear upon 
 said surplus moneys, to-wit : (or, thai no official search is contained 
 in the judgment roll in this action, and that deponent canfbid none on 
 file in the office of the Glerk of Albany county, although he has made 
 a search therefo)', but that deponent has had made by said Clerk, and 
 now has in his possession, an official search against the land described 
 in the deci-ee in this action, and that the following unsatisfied liens 
 appear by said search upon the said surplus moneys, to-wit) this 
 deponent as such mortgagee (or judgment creditor, or otherwise), fis 
 aforesaid, and the following named persons as judgment creditors 
 of the«said defendant, C. D., viz.: E. F., G. H., and I. J., who 
 have obtained judgments against said C. D. while he was the owner 
 in fee of the mortgaged lands described in said decree of sale. 
 6 
 
82 FOEMS. 
 
 That as appears from the certificate of the Clerk of Albany county 
 hereto annexed, the following named persons only, to wit : K. L. 
 and M. N., have entered an appearance in this action. 
 
 That as also appears from said certificate, the oniy persons who 
 have filed a notice with said Clerk that they are entitled to said sur- 
 plus moneys, or any part thereof, are O. P. and Q. R. 
 
 ) And this deponent further says that he is ignorant of any unsat- 
 isfied liens upon said surplus moneys, or any part thereof, that exist 
 other than those above stated. 
 
 [In cases where there may be difficulty in obtaining service of the 
 referees summons or of this notice upon any persons entitled to such 
 service or notice, and a. direction of the court in regard to such sen'ice 
 is required, add) 
 
 That the place of residence of the said I. J. is unknown to depon- 
 ent, and cannot by him, after due and diligent search and inquiry, 
 be ascertained ; but as appears from the judgment roll in this action, 
 the service of the summons herein was made upon him in the city of 
 New York. Deponent further says that the summons in this action 
 was served by publication and a copy thereof mailed to the defend- 
 ant, G. H., at Boston, Mass., but that this deponent is unable, after 
 reasonable diligence in that behalf, to ascertain the present place of 
 residence or whereabouts of said G. H. 
 
 W. B. 
 
 Subscribed and sworn before me, this ^ 
 
 day of , 187 . \ ^ 
 
 {Annex copy notice of claim to surplus moneys {form No. 1), and 
 the certificate of the OlerJc {form No. 5). 
 
FORMS. 83 
 
 NUMBER 3. 
 
 I Notice of Motion fw Ch-der of Reference. 
 
 SUPREME COIJRT. 
 
 A. B. 
 
 agt. 
 C. D. et al 
 
 Gent : Take notice that, upon the annexed affidavit and papers 
 with copies whereof you are herewith served, and upon the judg- 
 ment roll and referee's report of sale now on file in this action, I 
 shall move this Court, at a special term thereof to be held at 
 , in the city of , on the day of 
 
 ,187 , at the opening of the Court on that day, or as soon 
 thereafter as counsel can be heard, that 'it be referred to some 
 proper and suitable pei'son to ascertain and report the amount due 
 W. B., or to any other person, which is a lien upon the surplus 
 moneys mentioned in the annexed affidavit, and as to the priorities 
 of the several liens thereon, and for such other order as the Court 
 may think proper to grant. 
 
 Yours, etc., 
 
 E. F., 
 
 Att'y for W. B. 
 
 Dated Troy, N. Y., , 187 . 
 
 To each and every the several persons named in the annexed 
 affidavit. 
 
84 FORMS. 
 
 NUMBER 4. 
 
 Order of Reference. 
 
 At a special term of the Supreme Court held 
 at the , in the city of 
 
 on the day of ,187 . 
 
 Present, Hon. C. R. I., Justice. 
 
 A. B. 
 
 agt. 
 C. D. et al. 
 
 The referee's report of sale having been filed in this action, and 
 the same having been confirmed, from which it appears that there is 
 a surplus fund paid into court arising from the said sale, and upon 
 reading and filing the judgment roll in this action and the referee's 
 report of sale, with proof that said report has been confirmed, and 
 on reading and filing notice of motion and affidavit of W. B., dated 
 the day of , 187 , and the certificate of the Clerk 
 
 herein and notice of claim thereto attached, with proof of service of 
 said motion papers upon all persons appearing from said motion 
 papers to be entitled to service thereof, to- wit: C. D., E. F., etc., 
 Now, on motion of G. H., of counsel for the said W. B., no one 
 appearing in opposition to said motion,, it is ordered that it be re- 
 ferred to E. L. C, of Troy, N. Y., counselor at law, as a referee to 
 ascertain and report the amount due the said W. B., or to any other 
 person which is a lien upon such surplus moneys, and as to the 
 priorities of the several liens thereon. 
 
 And it is further ordered that the said referee summon before 
 him on the reference every party who has appeared in the action, 
 and every person who has filed written notice of his claim to such 
 surplus moneys with ■ the clerk of this Court, and that he also sum- 
 mon before him on such reference all persons having any unsatisfied 
 
FORMS. 85 
 
 liens upon said surplus moneys as appear from the moving papers 
 upon which this order was granted, and that he cause them to have 
 the usual notice of all subsequent proceedings, and report thereon 
 with all convenient speed. 
 
 (In case a direction of the Court is required in regard to the service 
 of the referees summons^ add ) 
 
 It is further ordered that the referee's summons herein be served 
 upon the defeudant G. H., by depositing the same at the post office 
 at the city of Troy, New York, enclosed in a suitable envelope, and 
 addressed to said G. H. at New York city, the postage being pre- 
 paid thereon. It is also further ordered that the referee's summons 
 herein be served upon the defendant I. J. by {proceed as in case of 
 an order for the service of a summons by pubticaiiori) (or insert such 
 other direction in regard to the service of the referees summons as the 
 court may direct in regard thereto). 
 
 NUMBER 5. 
 
 Certificate of Clerk of Parties who have Entered Appearances, and of 
 Persons Filing Notice of Claim to Surplus Moneys. 
 
 SUPREME COURT. 
 
 A. B. 
 
 agt. 
 C. D. et al. 
 
 I, the undersigned. Clerk of the county of Rensselaer, do hereby 
 certify that the following defendants, to-wit : E. F. and G. H., have 
 entered appearances in ihis action ; that said E. F. appeared by 
 K. L., of Troy, N. Y., as his attorney, and that said G. H. appeared 
 in person, and that none of the other defendants have caused their 
 
86 
 
 FOEMS. 
 
 appearance to be entered. I further certify that no notice of claim 
 to the surplus moneys arising from the sale of the mortgaged lands in 
 this action, was annexed to the referee's report of sale filed in my 
 office on the day of , 187 , and that the only 
 
 persons who filed any notice with me claiming to be entitled to said 
 surplus moneys, or any part thereof, are M. N. and O. P. ; that said 
 M. N. filed his notice by Q. E., an attorney of this court, and that 
 said O. P. filed his notice without an attorney, and in his said notice 
 of claim stated his place of residence to be the city of Troy, N. Y. 
 And I further certify that no exceptions have been filed to said 
 referee's report of sale (or, that the exceptions filed to said referees- 
 report of sale have been heard before the court, and an order has been 
 entered in my office confirming said report of sale, and declaring the 
 same absolute). 
 
 E. C. R., 
 Clerk of Rensselaer county. 
 Dated Troy, 187 
 
 / 
 
 NUMBER 6. 
 
 Referees Summons. 
 
 SUPREME COURT. 
 
 A. B. 
 
 agt. 
 e. D. et al. 
 
 -, etc. : 
 
 To 
 
 Pursuant to an order of reference made in the above entitled 
 action dated the day of ,187 ,1, the subscriber, 
 
 the referee therein mentioned, do summon you to appear before me, 
 the said referee, at my office. No. street, in the city of 
 N. Y., on the day of , 187 , to attend a hearing 
 
FOEMS. 87 
 
 before me of the said matters so referred. And I direct that this 
 summons be served at least days previous to the return day 
 
 thereof, 
 
 E. L. C, 
 
 Referee. 
 Dated the day of , 187. . 
 
 Undemnriting. — To proceed upon the matter referred of ascertaining 
 the amount due W. B. or any other person which is a lien upon the 
 surplus money arising from the sale of the mortgaged lands in this 
 action paid into court, and the priorities of the several liens thereon. 
 
 E. L. C, 
 
 Referee. 
 
 Underwi-Uing to produce books, etc. — Add " At which time and 
 
 place you are required to produce before me the following paper or 
 
 book {describe it) ; also all such other books, deeds or papei-s as are 
 
 in your custody or power relating to the matters referred to me." 
 
 E. L. C, 
 
 Referee. 
 Dated, etc. 
 
 NUMBER 7. 
 
 Claim of Creditor before Referee to Surplus Moneys on a Maigage 
 
 Sale. 
 
 ' SXJPREME COUET. 
 
 A. B. 
 
 agt. 
 C. D. et al. 
 
 The claim of E. F., a specialty creditor of C. D., one of the de- 
 fondants in this action to the surplus moneys arising front the sale 
 of the mortgaged lands under the final decree in this action. 
 
88 FOEMS. 
 
 The said E. F. states that he resides at the city of Troy, in the 
 county of Eeusselaer, and that he has a lien upon the said surplus 
 moneys by virtue of a judgment recovered against the defendant and 
 mortgagor C. D. in [the Supreme Court of this State, for the sum 
 of $ , and while he, said C. D., was the owner of the equity 
 
 of redemption in the mortgaged lands, and before the commence- 
 ment of this action, and which lien is next in priority after the moii- 
 giige of the plaintiff, and the whole amount of which judgment is 
 still due and unpaid. The said judgment was docketed in the 
 county of Albany on the day of ,187 (or, stale 
 
 in a similar manner the nature and amount of the lien as the owner 
 lind holder of a subsequent mortgage, or otherwise, as the case may 
 
 And he therefore claims the whole of said surplus moneys arising 
 from the sale of the mortgaged lands, which, after the payment of 
 the plaintiff's debt and costs, amounts to the sum of $ 
 
 E. F. 
 To E. L. C, Esq., 
 
 Referee. 
 Dated the day of , 187 . 
 
 Eensselaek County, ss. •• 
 
 E. .F., the above named claimant, being duly sworn, says that 
 the facts set forth in the above claim are true ; that the amount 
 therein claimed as being due to him upon the judgment therein 
 mentioned is justly due, and that neither he or any person by his 
 order or to his knowledge or belief, for his use, has received the 
 amount thus claimed, or any part thereof, nor any security or satis- 
 faction whatever for the same, or any part thereof other than the 
 said judgment. 
 
 E. F. 
 Subscribed and sworn before me, 
 this day of , 187 . 
 
 E. L. C, 
 
 lieferee. 
 
FOEMS. 89 
 
 ' NUMBER 8. 
 
 Consent on the Reference by a Wife to have her Dower Interest in 
 .the Surplus paid to her Husband. 
 
 SUPREME COURT. 
 
 A. B. 
 
 agt. 
 C. D. et al 
 
 I, P. D., a defendant heiein, and wife of the defendant C. D., do 
 hereby consent and request that the whole of my interest in the sur- 
 phis moneys which have arisen upon the sale of the mortgaged lands 
 in the above entitled action to which I am at present entitled, or 
 which I may hereafter be entitled to receive, may be paid over abso- 
 lutely and unconditionally to my said husband, the defendant C. D., 
 and that in the final order of distribution to be made by the court 
 in regard to said surplus moneys a provision to correspond with this 
 consent and request be inserted. 
 
 ^ 
 
 Witness my hand and seal this day of , 
 
 187 . ' 
 
 P. D. [l. s.] 
 In the presence of 
 
 E. L. C, 
 
 Referee. 
 
 State op New Yoek, 
 County of Rensselaee, 
 
 ss. 
 
 I certify that on this day^of . , 187 , before me, 
 
 the subscriber, referee in the above entitled action, appeared the 
 above named P. D., and I fully explained to her the nature and ex- 
 tent of her rights and interests in the surplus moneys arising upon 
 the sale of the mortgaged lands in the above entitled action, and 
 thereupon the said P. D., on a private examination apart from her 
 
90 FORMS. 
 
 husband, acknowledged that she executed the above instrument 
 
 freely, without any feai" or compulsion of her said husband, and 
 
 thereupon she signed the same, and I became a subscribing witness 
 
 thereto. 
 
 E. L. C, 
 
 Referee. 
 
 NUMBER 9. 
 
 Consent on the Reference by a Widow to accept 8um in gross in lieu 
 of her Dovxr in the Sw;plus. 
 
 {Title of the cause). 
 
 I, the undersigned, P. D.,,oue of the defendants in the above en- 
 titled cause, do hereby consent to accept in lien of my dower interest 
 in the surplus moneys arising upon the sale of the mortgaged lands 
 under the decree in this action, and in satisfaction thereof, a sum in 
 gross out of the said surplus funds, according to my rights, to be 
 asceilained by the report of the referee herein, which same is to be 
 computed according to the principles applicable to life annuities, 
 pursuant to the Portsmouth or Northampton tables and the 76th 
 rule of the courts, and that in the final order for the distribution of 
 said surplus moiieys a provision to correspond with this consent be 
 inserted. 
 
 Witness my hand and seal, this day of , 
 
 187 . 
 
 P. D. *[l. 8. J 
 In the presence of 
 
 E. L. C, 
 
 Referee. 
 
 {Add acknowledgeinent, as in the preceding form.) 
 
FORMS. 91 
 
 NUMBER 10. 
 
 Report of Referee, where there is hut one Claimant, and no Appearance 
 in the Action by any Defendants. 
 
 SUPREME COURT. 
 
 A. B. 
 
 agt. 
 C. D. et al 
 
 To the Supreme Court of the State of New York . 
 
 In pursuance of an order made in the above entitled action, on 
 the . day of , 187 , whereby it was referred to me, 
 
 the undersigned E. L. C, as referee, to ascei-tain and report the 
 amount due W. B., or to any other person, which is a Hen upon the 
 surplus moneys arising upon the sale of the mortgaged lands, under 
 the decree in this action, and as to the priorities of the several liens 
 thereon, I, the said referee do respectfully 
 
 Report, 
 
 That I have received the certificate of the treasurer of Albany 
 county, showing that there was, on the day of , 
 
 187 , in the said treasurer's bonds to the credit of this action, the 
 sum of $ , , being the amount paid in by the referee who 
 
 made the sale of said lands. I received also, the certificate of the 
 clerk of this court, showing that none of the parties defendants had 
 appeared in this action, and that said W. B. is the only party who 
 has filed a claim to the said surplus moneys, or any part thereof. 
 
 I further certify, there was also produced before me the affidavit 
 and moving pipers upon which the said order of reference to me 
 was granted, and that it does not appear from said motion papers, 
 that there are any unsatisfied liens upon said surplus moneys, other 
 than the claim of the said W. B., and that I do not know of any 
 other unsatisfied liens, and that no other person has filed with me 
 
92 FORMS. 
 
 any claim upon said surplus moneyl, or any part thereof. That the 
 said W. B., attended by his attorney J. P. C, appeared before me, 
 and I examined the said W. B. on oath, and from the facts proved 
 before me on such examination, I find that the said W. B. has a 
 valid judgment in his favor against C. D., one of the defendants in 
 this action, and who is also the mortgagor named in the complaint 
 in this action. That said judgment is for $ , and was 
 
 docketed in Albany county, on the day of , 
 
 187 , while the said C. D. was the owner in fee, of the said mort- 
 gaged premises, and that the same was executed at the time of the 
 sale of said lands by the referee herein. That the whole amount 
 thereof is due, with interest from the day of , 
 
 187 , and that such judgment is a lien upon said surplus moneys. 
 
 I accordingly report that the net balance of the said surplus 
 moneys which may remain after paying the costs of this reference, 
 and the commissions of the said treasurer should be paid over to the 
 said W. B., on account of the said judgment (2). 
 
 The testimony taken, and papers introduced before me on said 
 reference, are hereto annexed, and returned with this my report. 
 
 All of which is respectfully submitted. 
 
 E. L. C, 
 Referee. . 
 
 Dated the day of , 187 . 
 
 Fees, $ 
 
 When the surplus moneys are more than enough to pay the amount 
 of the claim and the costs of the refererwe and Treasurer's fees, add 
 
 (2) "And that the residue, after the payment of the costs of this 
 reference, the commissions of the county treasurer, and the claim of 
 the said W. B. as aforesaid, should be paid to the defendant C. D., 
 as the owner of the equity of redemption in the said mortgaged 
 lands." 
 
FOEMS. 93 
 
 , NUMBER 11. 
 Referee^s Report where there are Conflicting Claims. 
 SUPREME COURT. 
 
 A. b: 
 
 agt. 
 C. D., et al. 
 
 To the Supreme Court of the State of New York : 
 
 In pui-suance of an order made in the above entitled action, on 
 the day of , 187 , whereby it was referred to me, 
 
 the undersigned E. L. C, as referee, to asceit^in and report the 
 amount due W. B., or to any other pereon, which is a lien upon the 
 surplus moneys arising upon the sale of the mortgaged lands jinder 
 the decree in this action, arid as to the priorities theron, I, the said 
 referee, do respectfully 
 
 Report, 
 That I have received the certificate of the treasurer of the 
 County of Albany, showing that there was on the day of 
 
 ,187 , in his hands to the credit of this action, the sum of 
 $ , being the amount paid in by G. H., the referee, who 
 
 made the sale of said mortgaged lands. 
 
 I received also the certificate of the clerk of this court, showing 
 that of the parties defendant in this action, there had appeared 
 only C. P. and P. D., and the same certificate also showed that the 
 said W. B. was the only person who had filed a notice of claim to 
 the said surplus moneys or any part thereof. 
 
 I received also the motion papers upon which the said order of 
 reference was granted, and a certified copy of the official search which 
 was used in the progress of this action, and which was filed with the 
 judgment roll herein, and that from an examination of the same it 
 appears that E. F., of Troy, N. Y., is the only other person, other 
 than the persons above named, who has an unsatisfied lien upon the 
 said surplus moneys. 
 
94 FORMS. 
 
 I issued a summons to proceed before me on the said order of 
 reference, returnable at riiy office, in the city of" Troy, on the 
 day of , 187 , and caused the same to be personally 
 
 served on the said C. P., P. D., W. B. and E. F. That said sum- 
 mons with the proof of service thereof is hereto annexed and 
 returned with this my repoit. I was also attended on the said 
 reference by the said C. P. and M. N., his attorney, by said P. W. 
 and O. P., her attorney, and by the said W. B. and E. F. in person. 
 witnesses were examined before me and mortgages and transcripts 
 of judgments were duly proved before me. The testimony of the 
 witnesses had before me, and an abstract and memoranda of docu- 
 mentaiy evidence introduced before me is also hereto annexed, certi- 
 fied to by me and returned with this report. 
 
 I have taken proof of the several claims of the parties and persons 
 filing claims and having unsatisfied liens on said surplus moneys, 
 and I find : 
 
 That C. P. has the first lien upon such surplus moneys by virtue 
 of a second mortgage upon the mortgaged lands, which said mort- 
 gage was made and executed by C. D. and P. D., his wife, to the 
 said C. P., while the said C. D. was the owner in fee of the above 
 mortgaged lands, which mortgage was given to secure the payment 
 of $ and interest. That the same bears date the day 
 
 of ,187 , and is recorded in the office of the 'clerk of 
 
 the county of Rensselaer, on the day of , 187 , in 
 
 book of mortgages, No. , page . , and that said Uen amounts 
 to the sum of $ , with interest thereon from the day of 
 
 , 187 ., which, at the date of my report, is in all the 
 sum of $ 
 
 That P. D., one of the said defendants, is the widow of C. D., 
 deceased, and that she has the next lien upon said surplus money 
 as a doweress as such widow. That she is years of age, and has 
 consented to take a gross sum in lieu of such dower. That I have 
 computed and ascertained the present value of the amount of her 
 dower in such surplus moneys, and I find it to be the sum of $ 
 
FORMS. 95 
 
 I further find that is a judgment creditor of the said 
 
 , deceased, that he, the said , on the day of 
 
 ,187 , recovered a judgment against said in the 
 
 life time of said , to wit : on the day of , 
 
 187 , for the sum of $ , which judgment was on the day 
 
 last named docketed in the office of the clerk of Eensselaer county, 
 and while the said was owner in fee of said mortgaged 
 
 lands. That said judgment was an existing lien on said mortgaged 
 lands at the time of the sale thereof by the referee herein. 
 
 That said judgment has never been paid. That the said 
 as such judgment creditor, of the said , , deceased, has the 
 
 next lien upon said surplus moneys by viitue of the aforesaid judg- 
 ment, and his claim amounts to the sum of $ , with interest 
 thereon from the day of , 187 , amounting to this 
 date to the sum of $ 
 
 I further find that the said , who is the mortgagor 
 
 named in the complaint aud decree in this' action, departed this life 
 on the day of , 187 , prior to the commencement 
 
 of this action. That he died intestate, and that his only heirs at 
 law were the aforesaid P. D., his widow, and tlie said , 
 
 his only son, who is of full age, and who resides at the city of 
 Troy, N. Y. , ' 
 
 That the foregoing and above named persons are the only persons 
 who have any lien or claim upon the said surplus moneys, and that 
 the nature and amount of their said claims and the priorties of the 
 liens thereof upon said surplus moneys is as above stated and 
 reported by me. 
 
 And from the facts so found, I do find and report that the n6t 
 balance of said surplus moneys, after the payment of the costs and 
 expenses of this reference and the commissions of the treasurer of 
 Eensselaer county should be divided and paid as far as the said 
 surplus moneys will extend, according to them priorities in the 
 tbllowing order : 
 
 1st. To the said , on account of his second mortgage, 
 
96 FOEMS. 
 
 the sum of $ , with interest thereon from the day of 
 
 , 187 , he thereupon acknowledging satisfaction of 
 the said judgment. 
 
 2d. To the said P. D., the widow of , deceased, the sum 
 
 of $ , as and for a gross sum in lieu of her dower estate in 
 
 said mortgaged lands. 
 
 3d. To the said , on accoimt of his said judgment} the 
 
 sum of $ , with interest thereon from the day of 
 
 , 187 . 
 To the said the residue of said surplus moneys after the 
 
 payments above mentioned, the same being paid to him as the only 
 surviving heir at law of said , deceased. 
 
 All of which is respectfully submitted. 
 
 E. L. C, 
 Referee. 
 Dated Troy, the day of , 187 . 
 
 Fees, $ . . " 
 
 ■ NUMBER 12. 
 Another foiin of Report, Surplus Awarded to one Person. 
 SUPREME COURT. 
 
 A. B. 
 
 agt. 
 C. D. a al. 
 
 To the Supreme Court of the State of New York : 
 
 Pursuant to an order of this court in this action, dated the 
 day of , 187 , I, the undersigned, the referee therein 
 
 named, do 
 
FORMS. ' 97 
 
 Eepokt, , . 
 
 That I caused all the parties who have appeiucd in this action, and 
 all persons having filed notice of claim upon such surplus moneys, 
 to be summoned to appear before nie as appears by the certiticate 
 of the clerk showing what notices of claim have been tiled and Avhat 
 parties have appeared, and by the summons and proof of service 
 thereof, which are hereto annexed ; and on thi^ hearing I was 
 attended by E. F. as counsel for E. G., and by I. ,T. in person. 
 
 The amount of such surplus moneys is the sum of $ , as 
 
 appears by the certificate of the treasurer of the county of RenS" 
 selaer hereto annexed. 
 
 [Here set forth the claims, the facts proved, objections interposed, 
 etc., ; see foregoing for precedent). 
 
 And I find the foresjoina" facts, and from the tacts so found I 
 report that the said E. F., under and by virtue of the sheriff's deed 
 to him, is the owner of the equity of redemption of said mortgaged 
 lands, and as such owner he is entitled to the whole of said surplus 
 moneys, and that there is no lien or claim thereon prior to the lieu 
 and claim of the said E. F. 
 
 All of which is respectfully submitted. 
 
 E. L. C, 
 
 Referee. 
 
 Dated Troj", the day of , 187 . 
 
 Fees, $ 
 
 \ 
 NUMBER 13. 
 
 Clause to be inserted in Report lohen Husband and Wife mutually 
 agree in regard to Wife^s contingent Right of Dower. 
 
 And I further find and report, that the said defendant C. D, is the 
 owner of the equity of redemption in the said mortgaged lands, and 
 that the only existing Hen thereon, is the said inchoate estate of 
 of dower of P. D., the wife of the said defendant C. D. 
 
 7 
 
98 FOEMS. 
 
 And I find the foregoing facts, and from the facts so found I 
 report, that the said C. D., under and by virtue of his being the 
 owner of the equity of redemption of the said moilgaged lands, is 
 entitled to the whole of said surplus moneys, after first deducting 
 therefrom the costs and expenses of this reference, the commission 
 of the Treasurer ,of the county of Eensselaer, and the present value 
 of the contingent right of dower of P. D., the wife of said C. D., in 
 said mortgaged lands, during the life of her said husband. 
 
 And I further report, that the said C. D. and P. D., his wife, per- 
 sonally appeared before me on said reference, and made and exe- 
 cuted the instrument in writing and sfipulations hereto annexed by 
 which they mutually consented and agreed that I should report 
 herein that the present value of the inchoate estate of dower of the 
 said P. D. was the sum of $ (or, that the said C. D. and P. 
 
 D., his wife, personally, appeared before the said referee and signed 
 the ani^exed stipulation and agreement, whereby they mutually con- 
 sented and agreed that I should report that the said surplus moneys 
 should be equally divided, share and share alike, between the said 
 C. D. and P. D.) 
 
 NUMBER li. 
 Cerhyicate of Cflei'k that no Exceptions have been Filed. 
 SUPREME COURT. 
 
 A. B. 
 
 agt. 
 C. D. et al 
 
 I, E. C. R., clerk of the county of Rensselaer, do hereby certify 
 that the report of F^. L. C, the referee herein to ascertain and re- 
 
FORMS. , 99 
 
 port the ainouuts due to W. B., or to otlle'r persons which is a lien 
 upon the surplus moneys arising upon the sale pf the mortgaged 
 lauds in this action and as to the priorities of the several liens there- 
 on, was filed in my office on the day of ,187 , 
 and that no exceptions thereto have been filed. 
 
 E. L. C, 
 Cleric of Rensselaer county. 
 Dated the day of ,187 . 
 
 NUMBER 15. 
 
 Affidavit of Serving Notice of Filing Referee^ s Report. 
 SUPREME COURT. 
 
 A. B. 
 
 agt. 
 C. D. et al. 
 
 Rensselaer County, ss. : 
 
 M. N., attorney for the claimant G. H. herein, being duly sworn, 
 says : That- on the day of , 187 , he served the 
 
 annexed notice of filing the report of E. L. C, referee herein, upon 
 {state parties upon whom served and the manner of service, as in other 
 cases). That eight days have elapsed since the service of such no- 
 tice as aforesaid ; that as appears from the certificate of the clerk 
 of Rensselaer county, no exceptions to said report ' have been filed 
 with said clerk, and no exceptions to said report or copy thereof 
 have been served upon or received by this deponent. 
 
 M.N 
 
 Subscribed and sworn before uie, 
 this day of " ,187 
 
 06, ? 
 
100 
 
 FORMS. 
 
 NUMBER 16. 
 
 Notice of Filing Referee^ s'Repcni. under the 30ih Rule. 
 SUPREME COURT. 
 
 A. B. 
 
 Offt. 
 
 C. D. et al. 
 
 To E. F., Esq., Atto^-ney. far the defendant C. D. {and to the other 
 parties who appeared before the Referee) : 
 Gent : Take notice the report of E. L. C, the referee to whom 
 was referred the matter of ascertaining and reporting the amount 
 due to W. B., or to any other person which is a lien tipon the sur- 
 plus moneys arising upon ihe sale of mortgaged lands under the 
 decree in this action and as to the priorities of the several liens 
 thereon, which report bears date the day pf , 
 
 187 , was filed in the office of the Clerk of the county of Rensse- 
 laer, on the day of , 187 . 
 Yours, etc., 
 
 M. N., 
 
 Ai£y for Glnimant 0. P., 
 
 Troy, N. Y. 
 Dated the day of ,187 . 
 
 NUMBER 17. 
 
 Excepticms 
 
 to Report 
 
 SUPREME COURT. 
 
 
 A. B. 
 
 
 agt. 
 
 ■ 
 
 C. D. et al 
 
 
 Exceptions .taken by G. H., defendant, to the report of E. L. C, 
 referee, to whom it was referred to report claims and priorities on 
 
Mii^ 
 
 FOKMS. 
 
 surplus moneys arising on sale of mortgaged lands under the 
 in this action. 
 
 First exception. For that the said referee has in and by the 
 terms of said report certified and reported that I. J., a claimant (or 
 defendant,), has prior right, and is entitled to the whole of the said 
 surplus moneys, and that the said I. J. is not entitled, etc., etc., etc., 
 whereas the said referee ought to have reported that the said G. H. 
 is prior in right to and entitled, etc., etc., (stating the facts). 
 
 Second exception. The said G. H. also excepts to the 4th finding 
 of the said referee, to wit (^state it and the specific grounds of the 
 exception). 
 
 In all which particulai's the report of the said referee is as the 
 said G. H. is advised, erroneous. 
 
 J. P. C, 
 Attorney for O. H. 
 
 NUMBER 18. 
 Notice of hearing on Report and Exceptions. 
 SUPREME COURT. 
 
 A. B. 
 
 agt. 
 C. D. et al 
 
 Gent : 
 
 Take notice that upon the report of E. L. (a, the referee herein, 
 filed with the clerk of Rensselaer county on the day of , 
 
 187 , and the exceptions to said report filed with the said clerk on 
 the day of , 187 , and upon the judgment roll now 
 
 on file in this action, and upon the motion papers, proceedings and 
 order upon which said report is founded, a motion will be made at 
 
102 FOKMS. 
 
 the next special^ term of this court, appointed to be held at the 
 court house in the city of Troy, on the day of , 187 , 
 
 at the opening of the court on that day. or as soon thereafter as 
 counsel can be heard, for an order confirming said report, (or if the 
 motion is made in behalf of the party filing the exceptions, for an 
 order modifying said report in the several respects pointed out in said 
 exceptions,) and directing the surplus moneys to be paid over pur- 
 suant to the said report, (or pursuant to the said repo?'t as modi/led,) 
 together with the costs of these proceedings to be taxed, or for such 
 other or such further order as the court shall think proper to grant. 
 
 Yours, etc., 
 
 J. P. C, 
 Attorney for claimant G. II. 
 
 Dated the day of ,187 
 
 To E. F., attorney for defendant I. J., 
 
 arid such others as appeared before the referee. 
 
 NUMBEE 19. 
 
 Notice of Motion for Order of Distribution where the Report has been 
 Confirmed by a Previous Order. 
 
 (Title of cause.) 
 
 Gent : 
 
 Take notice that upon the referee's report in this action in regard 
 to the claims upon the surplus moneys herein and the piiorities of 
 said claims, which report was, by order of tliis court, bearing date 
 the day of , 187 , in all things ratified alid confirmed, 
 
 I shall move this court at a special term thereof, to be held at the 
 court house in the city of Troy, on the day of , 187 , 
 
 at the opening of the court on that day, or as soon thei'eafter as 
 counsel can be heard, for an order directing the said surplus moneys 
 
rOEMS. 103 
 
 to be paid over pursuant to said report, together with a direction in 
 regard to the costs of these proceedings, or for such other or further 
 order in the premises as said court shall see fit to grant 
 
 Yours, etc., 
 
 J. P. C, 
 Attorney for E. F., Claimant. 
 Dated the day of , 187 . 
 
 To E. F., Attorney for the defendant, 
 G. H., etc. 
 
 NUMBER 20. 
 
 Order Confirming Referee^ s Heport and for the Payment of the Sur- 
 2olus Moneys where there are more than one Claimant, and where 
 no Exceptimis have been Filed. 
 
 At a special term of the Supreme Court, held 
 at the Court House in the city of Troy, on 
 the day, of , 187 . 
 
 Present, Hon. C. E. I., Justice. 
 
 A. B. I 
 
 agt. 
 M. D. et al. 
 
 On reading and filing the report of the referee as to the surplus 
 moneys remaimng after the sale of the mortgaged lands under the 
 decree of the court in the above entitled action, which report was 
 filed with the Clerk of Eensselaer county on the day of , 
 
 187 , and on reading and filing proof of due service of the filing 
 of said report, and also the certificate of the clerk of this court show- 
 ing that no exceptions have been filed to said report, and eight days 
 having elapsed since the service of notice of the filing of said report 
 as aforesaid, and on reading and filing notice of this motion and 
 
104 FORMS. 
 
 proof of due service of the same, and after hearing Mr. C. in support 
 of said motion on behalf of the claimant G. H., and Mr. D. as coun- 
 sel for I. J., etc., it is ordered that the said referee's report be and 
 that the same hereby is in all things confirmed. 
 
 It is also further ordered that the surplus moneys aforesaid, to wit, 
 the sum of $ , heretofore paid to the Treasurer of the 
 
 county of Rensselaer be distributed as follows, to wit : 
 
 First That the County Treasurer deduct and allow therefrom his 
 lawful commissions for receiving and disbursing said moneys. 
 
 Second. That said County Treasurer pay to Jl P., or his attor- 
 ney, the simi of $ , with intei'est thereon from the day 
 of , 187 , being the sum of $ , which is in 
 full payment and satisfaction of the mortgage giveff by the defendant 
 C. D. and P. D., his wife, to E. F., and recorded in the oiBce of the 
 Rensselaer County Clerk, in book of mortgages No. , page 
 
 Third. That the said County Treasurer pay to P. D., the widow 
 of C. D., deceased, the sum of $ , which is in full satisfac- 
 
 tion and payment of her right of dower in the equity of redemption of 
 the mortgaged lands mentioned in the decree herein. 
 
 Fourth. That the said County Treasurer pay to I. J., one of the 
 defendants herein, the sum of $ , with interest thereon from 
 
 the day of , 187 , amounting at this date to the 
 
 sum of $ , the same being in full of the judgment recovered 
 
 by said I. J. against C. D., deceased, and docketed in the county of 
 Rensselaer, on the day of , 187 . 
 
 Fifth. That said County Treasurer pay to E. L. C, the referee 
 herein, the sum of %. for his fees and disbursements as 
 
 referee herein. 
 
 Sixth. That said referee pay to J. P. C, the attorney for G. H., 
 claimant' herein, the sum of $ , for his costs and disburse- 
 
 ments in these proceedings. 
 
 Seventh. That said County Treasurer pay the net balance and 
 residue of said surplus moneys, to wit : the sum of $ to O 
 
 P., the only heir at law of C. D., the deceased mortgagor herein. 
 
FOEMS. 105 
 
 NUMBEE 21. 
 
 Order Confimdng Referee's Report, and for the Payment of the Sur- 
 plus Moneys when there is but one Claimant. 
 
 At a special term of the Supreme Court, held 
 at the Courf House in the city of Troy, on 
 the day of , 187 . 
 
 Presetit, Hon. C. E. I., Justice. 
 
 A. B. 
 
 agt. 
 
 » 
 
 C. D. et al 
 
 On reading and filing the report of E. L. C, the referee herein, 
 dated the day of _ , 187 , and filed with the clerk 
 
 of this court on the day of , 187 , wherein it 
 
 appears that C. D. is entitled to the whole of the surplus moneys in 
 this action now in the hands of the Treasurer of the county of Eens- 
 selaor, and also on reading and filing the certificate of the clerk of 
 this court that no exceptions have been filed to said report, and after 
 hearing J. P. C, of counsel for the said G. H., it is ordered, that 
 the said report be and that the same hereby is in all things 
 confirmed. 
 
 It is further ordered that the said County Treasurer dispose of 
 said surplus moneys as follows : 
 
 Pirst. That he retain therefrom his lawful commissions for receiv- 
 ing and disbursing said moneys. 
 
 Second. That he pay to E. L. C. the sum of $ for his fees 
 
 and disbursements as referee herein. 
 
 Third. That he pay to M. N., attorney for the claimant C. D., 
 the sum of % for his costs herein. 
 
 Fourth. That the residue of said surplus moneys be paid by the 
 said County Treasurer to the defendant C. D., the said mortgagor 
 and owner of the equity of redemption. 
 
106 FOEMS. 
 
 NUMBEE 22. 
 
 Clause to he Inserted in Order Providing fw the Widow^s Dower in 
 cases where she will not Consent to take a Sum in Gross in lieu 
 thereof. 
 
 And it is further ordered that ^fter deducting from the said sur- 
 plus moneys the commissions of the said Treasurer of Eensselaer 
 County, and after the payment of the sum of $ , as hereinbe- 
 
 fore direcledto be paid to the said E. F. in payment and satisfaction 
 of the mortgage so as aforesaid executed and dehvered to him by 
 the said C. D. and P. D., his wife, then that the said Treasurer do 
 talic the one-third of the residue or net balance of the said surplus 
 funds and do invest the said amount in bond or mortgage, or other 
 permanent securities or interest, and do pay such interest to the said 
 P. D. during her natural life. 
 
 NUMBEE 23.' 
 
 Order to pay Swplus Moneys after hearing Exceptions where there are 
 Conflicting Claims and the Exceptions are Overruled. 
 
 At a special term of the Supreme Court, held 
 at the Court House, in the city of Troy, on 
 the day of , 187 . 
 
 Present, Hon. C. E. I., Justice. 
 
 A. B. 
 
 agt. 
 
 C. D. et al. 
 
 On reading and filing the report of E. L. C, the referee herein, 
 
 to whom it was referred to report in regard to the surplus moneys 
 
 .herein arising upon the sale of the mortgaged lands in this action, 
 
FORMS. 107 
 
 and the several liens thereon and their priorities, which report bears 
 date the day of , 187 , and was filed with the clerk of 
 
 this court on the day of , 187 , and also the exceptions 
 
 to said report made on behalf of the defendant I. J., and filed on 
 the day of , 187 , and on reading and filing proof of 
 
 due service of notice of this motion upon all parties entitled thereto, 
 and after hearing counsel for the respective parties : Now, on oiotion 
 of M. N. for the claimant, G. H., and after hearing O. P., of coun- 
 sel for the defendant, I. J., in opposition thereto, it is herebj'^ ordered 
 that the said exceptions be and are hereby overruled, and the said 
 referee's report in all things ratified and confirmed. And it is further 
 ordered that {^proceed andprpvide for the distribution of the surplus 
 moneys as in previous fwms). 
 
 NUMBER 24. 
 
 The like where the Exceptions or some of them are Sustained. 
 
 At a special term, etc., {as in preceding forni). 
 Present, etc. 
 
 ( T'itle of the cause). 
 
 On reading and filing the report of the referee herein, to whom 
 it was referred to ascertain the liens upon the surplus moneys in this 
 action and their priorities, dated the day of , 187 , 
 
 and also the exceptions to said report filed and served by I. J., a 
 claimant upon said surplus moneys, and on reading and filing 
 proof of due service of notice of this motion, and after hearing 
 counsel for the respective parties, on motion of O. P., of counsel 
 for the defendant I. J., and after hearing Mr. M. N., of counsel for 
 the claimant, E. F., in opposition thereto, it is ordered that the 
 first exception taken by the the defendant I. J. to the said report be 
 sustained, and that the same is hereby allowed, and that the said 
 
108 FOEMS. 
 
 defendant I. J. is entitled to the first lien in the said surplus moneys. 
 And the said report is modified in that particular accordingly, but 
 in all other respects the said referee's report stands ratified and con- 
 firmed. {Continue the order and provide for the dislribviion of sur- 
 jplus as in previous orders). 
 
 NUMBEE 25. 
 
 Clause to be Inserted in Order where Exceptions are Oven'uled and 
 Costs are Awarded against the Party Excepting. 
 
 It is ordered that the exceptions taken by the defendant G. H. 
 be overruled, and that the said defendant G. H. is not entitled to 
 a first lien on said surplus moneys, as against the claimant I. J., 
 ■whose claim therein is reported favorably by the said referee, and 
 his report is hereby confirmed in all respects. And inasmuch as the 
 filing of exceptions herein was unnecessary, therefore the said defend- 
 ant, G. H., has costs hereby ordered against him in the sum of 
 $ in favor of the claimant I. J. 
 
EEEATA. 
 
 On page 45, line 25, fm- " a recorded mortgage," read "an tmreoorded mortgage." 
 
INDEX. 
 
 A. 
 
 ADMINISTRATOR (see Heir and Devisee). 
 
 APPENDIX (see Table fob Computing Values of Life Estates). 
 
 ADVERTISEMENT: 
 
 foreclosure by, disposition of surplus moneys arising on .... ! 65 
 
 act of 1868, in regard thereto 65 
 
 act of 1870, in i-egard thereto 67 
 
 proceedings in respect thereof 67-68 
 
 decisions made prior to 1868, in regard to foreclosures by advei'isement, 69 
 party retaining moneys in his hands arising upon foreclosures by advert- 
 isement, when liable to action therefor , 70 
 
 c. 
 
 COURT OF CHANCERY : 
 
 jurisdiction of 1, 2 
 
 rules of, applicable to deposition of surplus moneys 4 
 
 COURT RULE: 
 
 68 4 
 
 65, in regard to deposit of surplus moneys 5 
 
 CHANCERY RULES 71-73 
 
 CLAIM TO SURPLUS MONEYS : 
 
 filing notice of the same 6 
 
 lien necessary to file the claim 7 
 
 COSTS : 
 
 of proceedings in claims for surplus moneys 38 
 
 suitable compensation to be paid out of the funds 38 
 
 costs properly chargeable to the fund 38 
 
 no allowance for percentage under the code 38 
 
 unsuccessful claimants, when charged with extra costs 39 
 
 rate of costs 38 
 
 widow claiming dbwer in funds, her costs, how allowed 39 
 
 chancery rule in regard to 39 
 
112 INDEX. 
 
 D. 
 
 PAGE. 
 
 DEVISEE (see Heir). 
 
 DISTRIBUTION: 
 
 of surplus moneys 36 
 
 order for 36 
 
 notice for 36 
 
 cannot be made unless report confirmed or stands absolute 36 
 
 order for, establishes liens and their priorities 36 
 
 certified copy of, authorizes payment of surplus 36 
 
 ■when order for confirmation of report and for distribution may both be 
 
 in one order 37 
 
 when notice for, made can be heard only on referee's general report. . . 37 
 when exceptions noticed with order for final distribution, the exceptions 
 
 to be first disposed of 37 
 
 DOWER : . . 
 
 of widow in the sui-plus 51 
 
 widow of the owner of the equity of redemption entitled to dower in the 
 
 surplus ■ 51 
 
 not bound by omitting to appear before the referee 51 
 
 her claim to be inserted in order of distribution 51 
 
 purchase money mortgage 52 
 
 where widow refused to sign second mortgage < 53 
 
 dower in equity of redemption when mortgage was exeouted'by hus- 
 band before man-iage 53 
 
 case where widow elects to accept gross sum in lieu of dower right 53 
 
 inchoate right of doiOer 54 
 
 follows the surplus moneys 54 
 
 ■ ' authbrities upon this' subject 54 
 
 investment of widow's doloer, in the surplus and of paying her a gross 
 
 sum in lieu of an annual income 55 
 
 of the investment of one-third of surplus in permanent securities. . . 55 
 
 widow accepting a gross sum 5S 
 
 proper rule for cohlputing:the pi-esent value of the wife's contingent 
 
 right of dOwer duriiig- the life of her husband 55 
 
 (See TABLES' in the Appendix), 
 
 court rules in regard to the investment of moneys upon securities. . 56 
 stipulations between husband and wife in regard to apportionment 
 
 of dower right in the surplus moneys 56 
 
 E. 
 EXCEPTIONS : 
 
 to referee's report ^ 30 
 
 how mad(! and filed 30 
 
INDEX. 113 
 
 • PAGE. 
 
 EXCEPTIONS— ObreiiTOeci. 
 
 if party neglects to except for eight days, report becomes absolute .... 30 
 
 exceptions should be specific in their nature 31 
 
 additional questions of fact 31 
 
 who may except 31 
 
 method of taking exceptions 31, 32 
 
 exceptions to finding of amount of dower interest 33 
 
 noticing of, for hearing 33 
 
 where noticed 33 
 
 how and by whom noticed 34 
 
 when exceptions]and notice of motion for distribution may be heard 
 
 together 35 
 
 how heard and argued 34 
 
 party excepting, to furnish the papers for argument ". 34 
 
 aiRdavits taken subsequent to report, cannot be heard 35 
 
 evidence not before the I'ef eree, cannot be heard 35 
 
 decision on argument of 35 
 
 if exceptions are overruled, report is confirmed absolutely 35 
 
 if exceptions, or any of them, are allowed, matter may be referred 
 
 back to refei'ee 35 
 
 sometimes unnecessary to refer back to referee 37 
 
 H. 
 
 HEIR OR DEVISEE: 
 
 entitled to surplus in preference to an administratoi- 59 
 
 case of Dunning, trustee, v. Ocean Bank, 61 N. Y. 497 59 
 
 L. 
 
 LIENS ON THE SURPLUS (see Validity of Liens.— Mechanics' Liens). 
 
 what are liens upon the sui'plus and prioi-ity of payment of 44 
 
 Priorities of Liens 44 
 
 purchasere of land sold under execution, have priority over prior 
 
 judgments 44 
 
 second mortgage prefen-ed to prior judgment 45 
 
 liens of creditors transferred from land to the surplus 45 
 
 an unrecorded mortgage has priority over a subsequent judgment, 45 
 
 mortgage first recorded, is presumptively the first lien 46 
 
 surrogates decree preferred to legacy 46 
 
 prior judgment confessed by two partners 46 
 
 when mortgage preferred to mechanic's lien 47 
 
 purchase of part of premises by mortgagee 47 
 
 when general lien pieferred to subsequent specific one ; 47 
 
 judgment against sheriff 48 
 
 liens to be paid in order of time 48 
 
 8 
 
114 INDEX. 
 
 « PAGE. 
 
 LIENS ON THE SURPLUS— Cowii^wed. 
 
 j udgment by confession, to indemnify sureties 48 
 
 cases where there are no contesting creditors 48 
 
 several mortg-ages 48 
 
 mortgage payable by installments 49 
 
 when senior mortgage not merged in equity of redemption 49 
 
 officer's fees on judgments 49 
 
 defendant, when substituted for plaintiff 49 
 
 judgment creditors obtaining specific liens 49 
 
 lien of attorney for costs 50 
 
 when lien extinguished by sale under judgment 50 
 
 LESSEE FOR YEARS : 
 
 his interest in the surplus moneys 56 
 
 case of Clarkson v. Skidmore, 46 N. Y. 301 56, 57 
 
 M. 
 
 ■MECHANIC'S LIENS : 
 
 inchoate rights of 43 
 
 duty of the court in regard to 43 
 
 questions arising under 43 
 
 preservation of contingent lien, how preserved 44 
 
 when mortgage preferred to 47 
 
 MOTION : 
 
 for order of reference , 7 
 
 what facts to be stated in the moving papers 8, 9 
 
 should show unsatisfied liens ; 8 
 
 to confirm referee's report 25 
 
 arises in two cases, where exceptions have been filed and served, 
 
 and where no exceptions have been filed 25 
 
 proceedings where no exceptions are filed 26 
 
 o. 
 
 ORDER OF REFERENCE : 
 
 who entitled to notice of application for 7 
 
 motion for 7 
 
 where made and how granted 10 
 
 moving papers should be specified in the order 10 
 
 directions to referee contained in the order 11 
 
 copy to be fui-nished referee 11 
 
 when to direct how i-eferee's summons should be served 11 
 
 referee may be changed after order made 11 
 
INDEX. 115 
 
 P. 
 
 PAGE. 
 
 PROCEEDINGS : 
 
 subsequent to referee's report, inhere no exceptions are filed 26 
 
 report to be filed • 26 
 
 in such cases, confirmation of report and order for distribution of sur- 
 plus, may botli be embraced in one order 26 
 
 practice under former court of chancery 27 
 
 cases where there is but a single claimant 27 
 
 PRIORITIES OF LIENS (see Libns on the Surplus). 
 
 E. 
 
 REFEREE'S SUMMONS : 
 
 what to contain, and how served 12, 13, 14, 15 
 
 attendance of parties, how enforced 14 
 
 REFERENCE : 
 
 proceedings on '. 15 
 
 a substitute for the former chancery practice 15 
 
 practice on the reference 16, 17, 18, 19, 20, 21 
 
 certificate and papers to be produced on reference 16 
 
 amount of surplus moneys, how proven 17 
 
 who may appear on the reference 17, 18 
 
 claimant to swear to his claim .^ 18 
 
 compelling attendance of parties 18 
 
 compelling attendance of witnesses 19 
 
 production of books and papers 20 
 
 general proceedings before the referee 20 
 
 who may prosecute the reference 21 
 
 REPORT OF SALE : 
 
 not to be confirmed unless accompanied with vouchers for surplus moneys, 5 
 
 REPORT : 
 
 of referee in regard to the surplus moneys 21 
 
 testimony to be tiled with the report 22 
 
 what the report should show on its face 22 
 
 the practice in regard to referee's making up and signing his report. . . 23 
 
 objections appearing in report 24 
 
 separate reports , 25 
 
 motion to confirm report j 25 
 
 proceedings subsequent to report 26 
 
 report to be filed 26 
 
 report, how reviewed 28 
 
 making and tiling exceptions to report 30 
 
116 INDEX. 
 
 PAGE. 
 
 REFEREE'S REPORT : 
 
 how reviewed 28 
 
 filing- of exceptions 28 
 
 30th rule of court 28 
 
 provisions of Code not applicable 28 
 
 chancery practice applicable 29 
 
 report, how I'eviewable on exceptions 30 
 
 SURPLUS MONEYS : 
 
 belong- to parties who had estates in the land sued 1 
 
 to be bro-ught into court for use of parties entitled thereto 3 
 
 how disposed of by officer making sale of mortgaged lands 5 
 
 filing notice of claim of 6 
 
 who has the right to present and establish claim for 7 
 
 order for distribution of 36 
 
 what authorizes payment of , 36 
 
 costs in applications for 38 
 
 va.lidity of liens on , 39 
 
 priority of liens on 44 
 
 when not applied for, to be invested 70 
 
 regulations regarding the same 70 
 
 SURROGATE : 
 
 payment to, of surplus funds where the mortgagor is dead 60 
 
 acts of the legislature in respect thereto 60, 61 
 
 case of Loucks v. Van Allen, 11 Abb. N. S. 427, holding that above 
 mentioned acts are limited to sales made otherwise than by 
 authority of a court 61-63 
 
 T. 
 
 TABLES : 
 
 for computing life estates 74-76 
 
 V. 
 
 VALIDITY : 
 
 of liens on the surplus 39 
 
 referee's power to inquire into 39 
 
 leading, authorities on the question 39, 40 
 
 can only inquire into absolute liens 39 
 
 cannot go behind a lien valid on the record 40 
 
 court should be satisfied that liens are just and should be paid .... 41 
 
 chancery rule in regard thereto 41 
 
 question of usury in mortgage 41 
 
 junior judgment creditors having conflicting claims 42 
 
 liens should be absolute liens, as distinguished fi-om claims not ma- 
 tured into liens 42 
 
APPENDIX. 
 
 PAGE. 
 
 Chancery rule 136 71 
 
 100 72 
 
 101 73 
 
 Annuity table 74 
 
 Tables showing inchoate right of dower of a married woman in surplus 
 
 funds 76, 77 
 
INDEX TO FORMS. 
 
 No. PAGE. 
 
 1. Notice of claim to surplus moneys 79 
 
 2. Affidavit for order of reference as to surplus moneys 80 
 
 3. Notice of motion for order of reference ■ 83 
 
 4. Order of reference 84 
 
 5. Certificate of clerk, of parties who have entered appearances, and of per- 
 
 sons filing notice of claim to surplus moneys 85 
 
 6. Referee's summons 86 
 
 7. Claim of creditor before referee to surplus moneys on a mortg-age sale ... 87 
 
 8. Consent on the reference, by a wife, to have her dower interest in the sur- 
 
 plus paid to her husband 89 
 
 9. Consent on the reference, by a widow, to accept sum in gross of her dower 
 
 in the surplus 90 
 
 10. Report of referee, where there is but one claimant, and no appearance in 
 
 the action by any defendant .■ 91 
 
 11. Referee's report where there are conflicting claims 93 
 
 12. Another form of report, surplus awarded to one person 96 
 
 13. Clause to be inserted in report, when husband and wife mutually agree, 
 
 in regard to wife's contingent right of dower 97 
 
 14. Certificate of clerk, that no exceptions have been filed 98 
 
 15. Affidavit of serving notice of filing referee's report 99 
 
 16. Notice of filing referee's report under the 30th rule 100 
 
 17. Exceptions to report 100 
 
 18. Notice of hearing on report and exceptions , 101 
 
 19. Notice of motion for order of distribution, where the report has been con- ' 
 
 firmed by a previous order 102 
 
 20. Order confirming referee's report, and for the payment of the surplus 
 
 moneys, where there are more than one claimant, and where no excep- 
 tions have been filed i 103 
 
 21. Order confirming referee's report, and for payment of the sm-plus moneys, 
 
 where there is but one claimant 105 
 
 22. Clause to be inserted in order, providing for the widow's dower, in cases 
 
 where she will not consent to take a sum in gross in lien thereof 106 
 
 23. Order to pay surplus moneys, after hearing exceptions, where there are 
 
 conflicting claims, and the exceptions are overruled 106 
 
 24. The like, where the ■exceptions, or some of them are sustained. 107 
 
 25. Clause to be inserted in order, where exceptions are overruled, and costs 
 
 are awai-ded against the party excepting 108