and on reading and filing proof of due service of notice of this application on Y. Z., the owner of the equity of redemption, and on all the parties who have appeared or who have served notice of claim to such moneys:

ORDERED, that it be referred to R. F., Esq., of

to

ascertain and report to this court the amount due the said W. X., and to any other person, which was a lien upon the mortgaged premises at the time of the sale thereof, and to ascertain the priorities of the several liens thereon, and to report with all convenient speed.

[In case unsatisfied liens appear by the searches in favor of persons not appearing or filing claims: It is furthered ORDERED that notice of the hearing before said referee be given tonames-by-state method of service.]

Enter: [signature of judge by initials of name and title.]

FORM No. 1961.

Report of referee as to surplus in foreclosure.70

[Formal part as in other cases, including oath; continuing:] All the parties who have appeared in this action, and all persons who have filed notice of claim upon such surplus moneys, duly appeared before me [or, I caused to be duly summoned to appear before me, as appears by the certificate of the clerk, showing what notices of claim have been filed, and by my summons, and proof of service thereof, which are annexed and marked Schedule A". And on the hearing, I was attended by M. N. for W. X., and by O. P. for the defendant Y. Z., and I heard the allegations and proofs of said parties and claimants, and the testimony taken

surplus stands in the place of the land and a continuing lien on the land is essential. Nutt v. Cuming, 155 N. Y. 309; Albro v. Blume, 5 App. Div. 309, 39 N. Y. Supp. 215; Delafield r. White, 19 Abb. N. C. 104. As to equitable principles applicable, see Burchell r. Osborne, 119 N. Y. 486; Crombie v. Rosenstock, 19 Abb. N. C. 312. As to legal liens, N. Y. Life Ins. Co. r. Mayer, id. 92.

69 If addresses are known, the method will be by mailing notice of hearing.

70 The report should show the facts found at the request of any party. Bigelow v. Bailey, 59 Hun, 403, 13 N. Y. Supp. 362.

71 The report should show that the parties attended, or that evidence was produced to him that all persons entitled to notice were duly served with notice of hearing (see Gen. Rule No. 64); and show the whole amount of the surplus moneys, and who is entitled thereto; so that, upon his report, the court may-dispose of the whole fund. Franklin r. Van Cott. 11 Paige, 129, 3 N. Y. Leg. Obs. 162; Hulbert r. McKay, 8 Paige, 651.

If the order of reference makes provision for service of notice of hearing upon persons who have not appeared or filed claims, but who appear by the searches to have unsatisfied liens, the report should recite due proof of service submitted and annexed.

before me, subscribed by the witnesses, together with copies of the documentary evidence, is hereto annexed.

I make the following findings of fact and conclusions of law:

FINDINGS OF FACT.

I. The amount of such surplus moneys is

dollars.

· [Then set forth the claims as established, the facts proved, and cny objections interposed and disposition thereof, and then the conclusions of law, ending, e. g., thus:]

I report that said W. X., under and by virtue of [the sheriff's deed to him, is entitled to the whole of said surplus moneys, and any accruing interest thereon, and that there is no lien or claim thereon prior to the lien and claim of said W. X.]. [Date.]

[Signature of], Referee.

FORM No. 1962.

Notice of motion for payment out of surplus.72

[Move the court on the report, a copy of which has been or is now served, for an order:] confirming said report, [and overruling the exceptions of Y. Z., filed thereto,] and directing that the city chamberlain [or, treasurer of the county] of

pay

to the defendant W. X., or his attorney, the whole [or, dollars] of the surplus moneys in this cause deposited with him [with the interest accrued thereon], and for such further [etc.]

FORM No. 1963.

Order (final) as to surplus.74

[Title (court order) and recitals, according to the case.]

ORDERED, that [said exceptions are overruled and] said report hereby is in all respects confirmed and the chamberlain of the city of New York [or, the county treasurer of ], is hereby

directed, upon the service on him of a duly certified and countersigned copy of this order, to pay out of the moneys remaining in his hands to the credit of this action to the persons below named, the sums set opposite their respective names [names and sums]. Enter: [signature of judge by initials of name and title.]

72 Notice of motion to confirm the report is necessary, and must be served upon all parties who have appeared or filed notice of claim. Gen. Rule No. 30, providing for confirmation of a referee's report as of course does not apply. Van Voast r. Cushing, 32 App. Div. 117, 52 N. Y. Supp. 934

73 Motion costs only can be granted. Dudgeon v. Smith, 23 Wkly. Dig. 400; Am. Mortgage Co. v. Butler, 36 Misc. 253, 73 N. Y. Supp. 334.

74 The court has power, in its discretion, to confirm or set aside the report of a referee appointed to ascertain the rights of claimants to surplus moneys on foreclosure, and is not

Affidavit to move for preliminary reference, where no material issue is

raised.75

I. That he is [the managing clerk for] the attorney for the plaintiff herein [or otherwise state relation to the cause].

II. That this action is brought [by leave of the
given by an order duly made and entered the

day of

19 76] for a partition [or, for a partition or sale] of real property situate in the town of in the county of owned by the plaintiff and the defendants W. X. and Y. Z. as tenants in common, and in which the defendant U. V. has an estate of dower [or otherwise briefly indicate nature of property and ownership].

77

[State service of summons, appearances, defaults, filing of lis pendens, etc., as in Form 1584, paragraphs IV. to IX.]

[Where a sale is asked, add:] That [one of the several parcels of] the land mentioned in the complaint, and of which partition is sought herein [to wit-designating one- and which is of the value of at least dollars, and exceeds in value the share to which either of the parties hereto will be entitled], consists of [describing it to show impracticability of actual partition], and [as deponent is advised and believes] is so circumstanced that actual partition thereof cannot be made without great prejudice to the owners, after due regard being had to the power of the court to decree compensation for equality of partition, and to the ability of the parties to pay reasonable compensation to produce such equality [may add facts substantiating this78].

[If several plaintiffs desire their shares set off in common, it may be alleged here, as in next Form.]

[If desired to dispense with advertising for liens, allege that there are none, and refer to and annex searches; see Form 1970.] [If application is ex parte, state as on p. 1172.]

[Jurat.]

FORM No. 1965.

[Signature.]

Affidavit of desire to enjoy shares in common.79

[Title of court and action.]

[Venue.]

W. X. and Y. Z., being duly sworn, say:

I. That they are respectively the [defendants] above named.

(and such "issue" means a defense which if successful would prevent the maintenance of the action, Brown v. Brown, 52 Hun, 532, 5 N. Y. Supp. 893), the cause is to be tried by jury (for Form see p. 1871, of this volume), unless the court directs the issues to be stated as special questions for trial by jury (for Form see pp. 1870 and 1871, or unless jury trial is waived by consent to reference or to trial by the court. N. Y. Code Civ. Pro., 1544; Levine r. Goldsmith, supra; Hewlett t. Wood, 62 N. Y. 75 (dismissing appeal from decision in

3 Hun, 736); Cassedy v. Wallace, 61 How. Pr. 240. The fact that the sole defendant is an infant does not authorize a reference where material issues are raised by the answer. Fairweather r. Burling, 181 N. Y. 117. 76 See Volume I, p. 568.

77 The formal answer of an infant is a practical default. Fairweather v. Burling, supra.

78 Van Arsdale v. Drake, 2 Barb. 599.

79 N. Y. Code Civ. Pro., § 1548; and as to a person non sui juris, § 1592.

II. That this action is brought for the partition of real estate situated in , in the county of which is owned in fee simple by the plaintiff and defendants, as tenants in common [or otherwise].

III. That deponents are each seized, in fee simple, of the equal undivided one- part of said premises, and desire to enjoy their shares in common, and to have the same set off to them in common, without partition or allotment as between themselves, and as deponents believe, this can be done without injury to the interests of any of the parties.

[Jurat.]

FORM No. 1966.

[Signature.]

Notice of motion for reference, where no material issue is raised. [Title of the cause.]

day of

Please take notice, that upon the annexed affidavit of A. T., verified the 19 and upon the summons and pleadings and proof of service thereof, and notice of pendency of this action and proof of filing, and [here specify any other proceedings which are relied on] the undersigned will apply to this court at a Special Term thereof, to be held at the city hall [or, county court house] in the of o'clock in the

, on the day noon, or as soon

of 19, at thereafter as counsel can be heard, for the relief demanded in the complaint and for a reference to ascertain and report the rights, shares and interests of the several parties—if sale is asked, add: and to ascertain whether the property, or any part thereof, is so circumstanced as to require a sale-if setting off shares in common is asked, add: and whether the premises are so situated that the shares of A. B. and C. D. may be set off in common to them without injury to the interests of the other parties, and for such other or further relief as may be just.

[Date, signature and addresses, as on p. 1171 of this volume.]

FORM No. 1967.

Order of reference preliminary to judgment for partition, or sale.80
At a Special Term [etc., as in
Form 820, p. 1174].

[Title of action.]

On reading and filing due proof by the affidavit of A. T., verified the

day of

80 Reference is necessary (unless the court determine these questions)

19 that the summons [and

wherever there is a party in default, including an infant party. N. Y.