MICHAEL McDERMOTT v. MICHAEL HENNESY and others. THE SAME v. THE SAME.Headnote
Su/rplus moneys — application for distribution of— Costs.Upon an application for the distribution of the surplu's moneys arising upon a sale under a foreclosure of a mortgage, no costs can be allowed except those particularly specified in the Code, viz., motion fees and the fees of the referee.
The hearing before the referee is not a trial, and no extra allowance can be made.
Ahpeai. from an order directing tbe distribution of tbe surplus moneys, arising under a sale bad in pursuance of tbe judgment entered in tbis action.
Tbe defendants, Catherine Mallery and John Ii. Gleason, were junior mortgagees. After tbe payment of tbe costs of tbe action there remained a surplus of $1,012.63. Hpon the application of tbe defendant Catherine Mallery, an order was made referring it to a referee to ascertain and report as to tbe priorities of tbe several liens upon such surplus, and as to who were entitled to receive the same. After the filing and report of tbe referee tbe defendant Mallery moved for an allowance for costs for tbe proceedings had before him, and an order was made at tbe Special Term directing tbe payment to her out of such surplus, of tbe sum of $150. From tbe order granting this allowance tbis appeal was taken.
Peary & Martim, for the defendant A. Gleason, appellant.
Tbe order is appealable. {People v. PT. IT. C. P. P. Co., 29 N. Y., 418 ; Ennis v. Purcell, 2 Thompson & Cook, 538; Sluyter v. Smith, 2 Bosw., 673 ; Wilkinson v. Tiffcmy, 4 Abb. Pr., 98 .) Tbe court exceeded its power in granting tbe order appealed from. (Chap. 270 of 1854; Elwell v. RoVbins, 43 How. Pr., 108 .)
T. McManus, for tbe respondent Gleason.
This is a proceeding in equity, and the costs are in tbe discretion of tbe court. (Code, § 306; Taylor v. Pool, 43 N. Y., 628 ; Piper v. Poppenheusen, 43 id., 68 ; Southwick v. Southwick, 49 id., 511; Krekeler v. Rit-ter, 62 id., 375.)
Without deciding whether this application should be called a special proceeding or a proceeding in the foreclosure action, we are satisfied that in either case the views expressed by Judge Balcom, in Elwell v. Robbins ( 43 How., 108 ), as to costs, are correct. There is no right to grant an extra allowance. (See also, Rens. and Sara. R. R. Co. v. Davis, 55 N. Y., 145 .) The only costs which can be allowed are those particularly specified in the Code, viz., motion fees and referee’s fees. The hearing before the referee, is not a trial.
The only costs, therefore, which can be allowed are ten dollars costs of the motion to confirm the referee’s report and his fees, and ten dollars costs of order appointing referee, if that was allowed in that order. The order appealed from must be modified accordingly.
The question involved is, perhaps, new, and no costs of the appeal are allowed to either party.
Present — LeabNEd, P. J., Booees and BoaedmaN, JJ.
Orders reversed and order granted to be settled by LeaeNed, P. J., as per his memorandum. No costs of appeal.