
    SUPREME COURT.
    Theodore Martine, respondent, agt. Anna and Henry M. Lowenstein et al., appellants.
    
      New York, General Term,
    
    
      December, 1875.
    
      Appearance in foreclosure proceedings.
    
    The owners of the equity of redemption in a mortgage foreclosure case may appear in the action after judgment by default, for the'purpose of taking care of their interests in any further proceedings which plaintiff may necessarily take.
    Under rule 89 the referee’s report in such a case is not confirmed at the expiration of eight days, from the filing, but eight days from the service of notice of filing; and where such notice has not been served upon the opposite party, their exceptions to the referee’s report must be heard.
    Appeal from an order denying motion to argue exceptions to the report of the referee.
    In an action to foreclose a mortgage appellants were the owners of the equity of redemption. Failing to appear, judgment was taken against them by default on the 14th of May, 1872. Papers on a motion to open the judgment were served on plaintiff May 31, indorsed “ F. W. Townsend, ’ attorney for defendants Lowenstein,” which motion was denied, and an appeal taken from the order denying judgment.
    On the 25th of June, 1873, by consent of F. W. Townsend, an order was entered substituting Samuel J. Crooke as attorney for said Lowensteins.
    The premises were sold and referee’s report filed September 23, 1873. Mo notice of filing report was given to appellants. October 27, 1873, appellant’s attorney filed exceptions to the report, and served copies on the referee and on plaintiff’s attorney.
    These were returned with the indorsement that they were served too late, as the report had been filed more than eight days. The motion for hearing the exceptions was denied on the ground that appellant had not appeared in the action until after judgment by default, and that under rule 39 (Sup. Ct. Rules) they were not entitled to file exceptions.
    On appeal, held, that the service of papers, with the indorsement, as above stated, was sufficient appearance; that appellants could appear even, after judgment, for the purpose of taking care of their interests in any further proceeding which plaintiff might, necessarily, take.
    Hule 39 of this court requires notice of'filing report to all parties entitled to notice, and that the referee’s report is not confirmed at the expiration of eight days from the. filing, but eight, days from the service of. notice of filing:
    Appellants were entitled to this notice, and' it not having been- given, the exceptions were in time and' should have been heard.
    Order reversed, with costs and disbursements.
   Opinion by Davis, P. J.; Brady and Daniels, JJ., concurring.  