
    Jane Bemus, Plaintiff, v. Lucia A. Thrall et al., Defendants.
    (Supreme Court, Erie Special Term,
    May, 1901.)
    Costs — Against defeated claimant of a foreclosure surplus.
    Where a second mortgage, under which the mortgagee named therein claims a surplus resulting from the foreclosure of a prior mortgage, is found by a referee in the surplus money proceeding to be fraudulent as to judgment creditors of the mortgagor, and the said surplus is insufficient to pay their claims, the second mortgagee will be charged personally with the costs of the proceeding.
    Motion by claimants of surplus moneys arising from sale of mortgaged premises to charge claimant Thrall with payment of costs.
    Alfred L. Furlow, for George T. Armstrong, receiver in supplementary proceedings taken by judgment-creditors of the mortgagors, for motion.
    Jerome B. Fisher, for claimant Brigham N. Thrall, opposed.
   Childs, J.

This is a motion by claimants of surplus moneys arising from sale of mortgaged premises to charge the claimant Brigham N. Thrall with the payment of costs.

Upon the motion .to confirm the report of the referee in this proceeding, which was unopposed, an order was made confirming the same and charging Thrall, personally, with the payment o± $250 costs. That order has been, by stipulation, so far vacated as to permit the claimant Thrall to be heard on the question of costs, and that question has now been presented by counsel both on the part of the claimants and Thrall. Thrall claimed, the whole surplus as the holder of a subsequent mortgage executed by Thrall & Beck, the owners of the equity of redemption under the mortgage foreclosed. The referee, after a protracted hearing or trial, reached the conclusion and decided that the mortgage under which Thrall claimed was given without consideration and to hinder, delay and defraud the creditors of Thrall & Peck, and was, as to the creditors of Thrall & Peck, fraudulent and void. The disposition of this motion has required an examination of the testimony taken by the referee, and such examination has led -to the conclusion that the findings of fact and conclusions of law of the referee are supported by such testimony, and that the mortgage held by Thrall was properly held, not to entitle him to the surplus an question. The other claimants are judgment creditors of Thrall ■& Peck, and it appears that an application of the entire surplus ■arising from the sale in this action will come about $300 short of •paying their judgments and the costs of this proceeding, and that such costs were substantially all incurred in defeating the fraudulent claim of Thrall. Such being the situation, it is not inequitable that he should indemnify the other claimants from loss by reason of the costs thus incurred.

The order heretofore made requiring Thrall to pay $250 of such ■costs should stand and an order to that effect may be entered.

Ho costs of this motion besides the ten doEars awarded on the ■confirmation of the referee’s report.

Ordered accordingly.  