
    The Farmers’ Loan and Trust Company, as Trustee, Respondent, v. The Hoffman House, Respondent. Hoffman House, New York, Appellant; Elizur V. Foote, Receiver, Respondent.
    
      Intervention in a mortgage foreclosure suit, by a purchaser at the sale— the decision on a reference to determine the amount which the purchaser should be required to pay does not justify a vacation of the intervention proceeding.
    
    The Hoffman House, New York, which purchased certain premises at a mortgage foreclosure sale, was permitted to intervene in the foreclosure action. After the issues raised by the intervention proceeding had been referred, but before they had been determined, a reference was ordered to ascertain the amount which the said corporation should be required to pay on its bid. After the referee appointed in the latter proceeding had made his report, the corporation made a motion to stay the confirmation of such report until the issues raised in the intervention proceeding had been determined. This motion was denied and the report confirmed. Thereafter an order was granted vacating the intervention proceeding on the ground that the intervenor had litigated all the questions at issue, and had obtained all the relief to which it was entitled before the referee whose report had been confirmed.
    
      Held, that the intervenor was entitled to have the issues raised in the intervention proceeding tried therein, and that the court had no power to deprive it of that right by vacating the intervention proceeding.
    Van Brunt, P. J., and Patterson, J., dissented.
    Appeal by the intervenor, the Hoffman House, New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1903, dismissing the appellant’s petition in intervention and vacating an order of reference in the said intervention proceeding.
    
      David McClure, for the appellant.
    
      Charles E. Hughes, for the receiver, respondent.
   Hatch, J.:

The defendant, Hoffman House, Rew York, was permitted to intervene in the foreclosure action of the Farmers’ Loan and Trust Company against the defendant, the Hoffman House. The order of intervention was based upon a petition of the Hoffman. House, New York, wherein was set out all the rights and equities of this defendant to which it claimed to be allowed on account of the dealings of the receiver pendente bite with the property in the foreclosure action and otherwise. The petition is long and makes various claims not necessary now to be stated. The proceedings which have been had and the facts connected therewith will be found stated in Stokes v. Hoffman House (46 App. Div. 120; S. C. on appeal, 167 N. Y. 554). The Court of Appeals in its decision declined to settle the equities between these parties in that action, but held that the Hoffman House, New York, was entitled to have considered upon its purchase at the foreclosure sale all'of the equities in its favor which might be urged in reduction of the amount which it was required to pay on account of its bid and to have adjusted all equities which arose between it and the receiver or otherwise, to which it might be entitled as purchaser or otherwise. Ih the discussion of what-those equities were and how and where they might be determined the Court of Appeals used this language: “ All these matters, however, are questions which can be determined only in the foreclosure action and upon which we do not pass.” Following this decision the intervention was ordered and issue was joined by the service of answers thereto by all the parties in interest and the issues thus raised were referred, but seem never to have been disposed of. Thereafter an order of reference was entered while the foregoing proceeding was pending, sending the case to a referee to take proof and ascertain the amount which the Hoffman House, New York, as purchaser should be required to pay on account of its bid, to take proof of the amounts properly chargeable against the gross proceeds of the sale for expenses, etc., and to ascertain the value of the outstanding 125 mortgage bonds, it being-recited in the order that it was to enable the court to fix and determine the value of the bonds and the amount payable under the $35,000 bond, which had been given by the Hoffman House, New York, as indemnity to protect the mortgagee for the amount it should be entitled to receive upon the foreclosure. Hearings thereon were had before the referee and he finally made his report, in which it is claimed that all of the equities which existed in favor of the-Hoffman House, New York, and to which it was entitled were allowed by the referee and deducted from the amount which the Hoffman House, New York, was required to pay to complete its purchase. After this report had been delivered a motion was made to stay its confirmation until disposition was had of the issues raised by the intervention proceeding. This motion was denied, the report was confirmed by the court, and upon appeal by the intervenor to this court the order was affirmed. (Farmers’ Loan & Trust Co. v. Hoffman House, 86 App. Div. 617.) Thereafter this motion was made and granted, based upon the ground that the Hoffman House, New York, had been allowed for everything in deduction of the amount of its bid on the foreclosure sale, to which it was entitled, and that as it appeared before the referee and litigated all of the questions, it could take nothing of benefit by further continuing that action, and, therefore, the court had power to end a fruitless litigation by the dismissal of such proceedings. The question presented upon this appeal is one of the right of a defendant who has properly intervened in an action, to have the issues raised therein settled therein and of the power of the court to deprive the litigant of such right. It is quite evident that the determination of the referee in the special proceeding to arrive at the amount which the purchaser should pay by reason of its bid at the foreclosure sale is not res adgudicata of the defense raised by the petition of intervention and pending as an issue in the foreclosure action. In the proceeding before the referee the issues were limited and narrow; in the action all equities may be fully and completely litigated, determined and adjusted. Section 965 of the Code of Civil Procedure provides : An issue, either of law or of fact, must be tried as prescribed in this chapter, unless it is disposed of as prescribed in chapter sixth of this act.” Nothing in chapter 6 places any limitation upon the right to a trial of issues of fact raised in an action where such issues are required to be determined in order to adjust the rights of the parties. When the defendant Hoffman House, New York, was permitted to intervene, it occupied precisely the same position as though it had originally interposed an answer to such foreclosure, wherein it raised an issue which either wholly or partially defeated the mortgage, and we know of no power in the court to strike out an answer upon motion, where such an issue was raised, because it is claimed that the questions there at issue have been determined in "some other proceeding.. It may be that the plaintiff has a right. in some form to avail itself of the trial and adjudication which has been had; but whatever such right may be, it is not the right to summarily eject the defendant from an action, without a trial or other determination therein, wherein such defendant has raised an issue of fact. Nothing short of a trial and determination of the issues in that action will serve to answer for the right thus obtained. It is said tfiat the decision of this court in refusing to stay the proceedings upon the report of the. referee adjudicated such question in favor of the plaintiff, and that the subsequent confirmation of the report of the referee by this court was an adjudication that the Hoffman House, New York, had no further interest or rights in the intervention proceeding in the action. Such view is fallacious. We were unable to see upon either motion any ground for a stay of those proceedings, or discover wherein or how the Hoffman House, New York, could obtain any further rights than it already had obtained by a continuance of such proceeding. Those considerations, however, were reasons, why the proceeding should not be stayed and why the motion for confirmation should be granted, but neither decision assumed to determine the fights of the defendant in the intervention proceeding. Nor could it so determine, because such questions were not before it. It had the right and" authority to determine the proceeding so far as the questions were presented, and this it did by the denial of the - motion in one case and the confirmation of the report of the referee in the other, but such determination had no more effect upon the right of this defendant in the action in which it had intervened than though they had never been decided or the questions presented. It may be that the Hoffman House, New York, will take' nothing that it has not already had the benefit of out of the continuance of the proceeding in the foreclosure action. It may be that it will establish the existence of equities therein which are substantial and which it has the right to have allowed, and which have not yet been determined. The merits of its claims in that connection are not now before us for discussion; the power of the court to summarily put an end to its rights is, and upon that question we reach the conclusion that the court was without power to make the order which it did.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J., and Patterson, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  