
    THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. MARIA S. D. SALEM, CHRISTINA K. MARTLING, Appellant, and MORITZ LEIPZIGER, Respondent, and others.
    
      Buie 77—application for distribution of surplus moneys—report of referee—power of cowrt over.
    
    Upon the coming in of a report of a referee, appointed to ascertain the rights of claimants to surplus moneys produced on a sale under a decree of foreclosure, the court has the most ample power to confirm, set aside, or refer back the same for further proofs, as to its conscience shall seem just and equitable. While the moneys remain in the court undistributed, the court may at any time vacate the order confirming the report, and refer the matter back to the referee for further proof.
    
      Quad’s whether such an order is appealable.
    Appeal by Christina K. Martling from an order of the Special Term, vacating an order confirming the report of a referee as to the disposition of the surplus moneys in the above entitled case, so far as it affected the parties to the motion, and referring the matter back to the same referee to take further proofs, etc.
    
      Mr. Halbert, for the appellant.
    
      J. T. Davies, for the respondent.
   Davis, P. J.:

This was a proceeding in equity to ascertain the rights of the respective claimants to the surplus money produced on the sale under the decree of foreclosure in the above entitled case. The object of the reference is to inform the court of the legal and equitable titles to the money; and, on the coming in of the report and testimony, the court, sitting in equity, has the most ample power to confirm, or set aside, or refer back the same for further proofs, as to its conscience shall seem just and equitable. The object of naking the reference is, as is well recited in the seventy-seventh •ule of the court, “ to the end that on the coming in and confirmaion of the report, such order may be made for the distribution of such surplus moneys, as may be just.” While the moneys remain in court undistributed, the equitable powers of the court over the proceedings must he complete; and in opening the confirmation and referring the matter to the referee for further proofs, the court acts in the exercise of such powers. There is hardly any analogy between the motion for, and the granting of new trials-in actions at law after issues tried, and the exercise by the court of its equitable powers over proceedings of this nature. They are not governed by the same technical rules, but by the wider discretion of equity, in seeking to do justice in accordance .with its own established rules, without regard to legal technicalities which do not in the given case receive the approval of the court. In granting the order appealed from, the court below acted in the exercise of the discretion pertaining in such cases to courts of equity. It is insisted that for this reason the order is not appealable. We áre not inclined to pass upon that question, because, in our judgment, the order may with propriety be affirmed. The report excluded the respondent from participating in the surplus to any extent, because his mortgages, which were prior liens in point of time, were void for usury. Under the circumstances of the case, and in view of the new facts presented on behalf of the respondent, the court deemed it just and equitable that a rehearing on the question of the validity of the mortgages should be had before the referee upon additional proofs, at the same time preserving all the testimony taken by the referee.

We see no abuse of the discretion of the court that calls for our interference; on the contrary, the order seems not to have been improvidently made. It should be affirmed, with ten dollars costs on this appeal, besides disbursements.

Daniels and Lawbenoe, JJ., concurred.

Ordered accordingly.  