
    THE UNION DIME SAVINGS INSTITUTION OF THE CITY OF NEW YORK v. EMMA LOUISA OSLEY and others, Respondents, and ADDISON P. SMITH, Executor, etc., Appellant.
    
      Surplus moneys—m'der of reference—object of.
    
    Appeal from an order vacating and setting aside the report of a referee, made in proceedings relative to surplus moneys. In this matter, the claims presented, except one for funeral expenses, were seriously contested. The order of reference was made, however, without objection.
    The court at General Term held, that the order of reference usually made to ascertain and report the amount of surplus money remaining, after a sale on foreclosure, and the liens and claims against the same, and their priorities, is not granted for the investigation and determination of contested' claims, but for the purpose of ascertaining liens and claims about which there is no dispute, and to settle the priorities of the liens, that each may be adjusted according to its legal status.
    That though the rule is in favor of a referee’s report in actions regularly commenced as such, when conflict in. the evidence and proof exists, unless the preponderance of evidence is against its propriety, or it is apparent that the referee has clearly misunderstood the evidence; yet the rule is not conclusive even in such cases, and each' proceeding stands upon its own elements, to be disposed of as they affect the appellate tribunal.
    In this matter, which was a summary proceeding and not an action, and under the circumstances which marked its progress, and the doubt which existed in relation to the counter-claim urged, the court thought it better to compel the parties, claimants, to proceed by action in the usual way, and thus afford the devisees all the benefits arising from the advantages of pleadings, and the tribunals which are by law designated for the investigation and adjudication of disputed claims.
    The precedent of submitting such demands to determination on an application to ascertain liens upon surplus funds, does not commend itself. (See King v. West, 10 How. Pr., 333; Husted v. Dakin, 17 Abb. Pr., 137.) And when the reference is made, as in this case, to ascertain and report, the court should be satisfied by the result, beyond all doubt, before adopting the report that the claims are just and should be paid. The court was not so satisfied, and it directed the funds to be kept in court, or rather on deposit, until the claims should be determined.
    
      R. F. Andrews, for the appellant.
    
      Andrew Blake, for the respondents.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred

Order affirmed, and proceedings referred to a referee to hear and determine the claims.  