Borland v. Alleond

8 Daly 126

• Court: New York Court of Common Pleas
• Decided: November 2, 1878
• Status: Published

Opinion

Joseph F. Daly, J.

The costs to be allowed on a reference to ascertain the party entitled to the surplus moneys in foreclosure cases are costs of motion only, so far as the costs are payable out of the fund. This I regard as the proper rule under the authorities, although no distinction is therein made between costs chargeable upon the fund and costs in favor of a successful contestant against other claimants upon the fund. (Wellington v. Ulster Ice Co., 5 Weekly Dig. 104; Elwell v. Robbins, 43 How. Pr. 108 ; N. Y. Life Ins. Co. v. Vanderbilt, 12 Abb. Pr. 462 ; McDermot v. Hennesy, 9 Hun, .) The owner of the equity of redemption should not be made to suffer by reason of a litigation between rival claimants in which he takes no part; these claimants should be chargeable as between each other with the expenses of the contest, and it may be that a trial fee in addition to motion costs would be properly taxable. Although the determination is summary in its nature, the mode of ascertaining the priorities of liens is in no way different from an ordinary trial of issues by a referee. (Elwell v. Robbins, supra.)

As I understand, the claim here is for payment out of the fund. The costs of motion only should be allowed, i.e., for two motions at $10 each, besides referee’s fees, taxed at $75, and disbursements under the cases cited.

Ordered accordingly.