Willson & Adams Co. v. Schorpp — 41 N.Y. St. Rep. 471

Majority

p. 471

The Willson & Adams Co., of Mount Vernon, Pl'ff, v. Henry A. Schorpp, et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Reference—Report—Rule 30.

Rule 30, which makes a referee’s report absolute in eight days, does not deprive the court of the power to cancel the report for good cause. So held, where the report showed a balance of moneys in the referee's hands which did not in fact exist.

Appeal by defendants, Henry A. Sohorpp and Lucia S. Schorpp, from order denying motion to compel the “referee to sell” to deposit surplus moneys, and also from order overruling exceptions to the referee’s corrected report,

Milo J. White, for app’lts; Charles F. Irwin, referee in person.

The plaintiff obtained a judgment for the sale of certain real property in the village of Mt. Vernon, to satisfy a lien which they had filed upon the property. A referee was appointed to sell the right, title and interest of the defendants therein. The referee was required by the terms of the judgment to pay expenses of sale, also taxes and assessments which were liens, and then to pay the plaintiff’s judgment. Any surplus was to be paid by the referee to the treasurer of Westchester County. The bid at the sale was $4,000 and all incumbrances were to be deducted. There were mortgages to nearly that sum, but the bidder advanced enough to pay the lien, judgment and costs and it was paid. The referee deducted that amount from the amount of the incumbrances and reported the part of the mortgage as reduced by the advance made' by the bidder as surplus. There was no surplus and the reduction of the mortgage was irregular and unauthorized and is probably to be explained by the fact that the bidder subsequently gave the defendants fifty dollars for a deed of the property subject to the mortgages and allowing the advance made to pay the plaintiff’s lien. The defendants applied to compel the referee to pay in the surplus apparently in his possession under his report and the county judge permitted an amended report to give the true facts. More than eight days had expired from the filing of this report. The rule which made the report absolute in eight days did not deprive the county judge of the power to cancel the report for good cause. It would be unjust to use the rule so as to compel a referee to pay over a large sum of money which he never received.

Order affirmed, with costs.

Dykman and Pratt, JJ., concur.