
    Sarah Louise Cromwell et al., Plaintiffs, v. Arthur J. Foster et al., Defendants.
    (Supreme Court, New York Special Term,
    April, 1899.)
    Foreclosure — Demand of subsequent mortgagee against co-defendants.
    Although,. in an action of foreclosure, a subsequent mortgagee demands by his answer that his mortgage be next payable from the surplus and serves his answer upon all the defendants who have appeared and they fail to take issue upon it, he can obtain no relief until a referee has been appointed, a sale had and surplus proceedings taken, as there may be lienors, in priority to the answering defendant, who have failed to appear and, if there are any, they are entitled, under section 521 of the Code of Civil' Procedure, to be served with the answer. •
    Motion for appointment of a referee in a foreclosure action.
    Bowers & Sands, for motion.
    Samuel Strasbourger, opposed.
   Giegerich, J.

In an áction for foreclosure, a subsequent mortgagee sets up his mortgage, hy answer, and demands that it be payable next from the .surplus. Service of this answer was. made upon all defendants who appeared in the action, and they have failed to take issue. It may be that lienors in priority to the answering.defendant have failed to appear, yet this would not bar their right to priority in the surplus after satisfaction of. plaintiff’s lien, and, accordingly, the answering defendant has not shown himself to be entitled to the direction which he asks. See Code' Civ. Pro. § 521. His remedy is against the surplus. The motion of the plaintiff is, therefore, granted, and the application of the defendant Strasbourger denied, with $10 costs.

Motion granted and application denied, with $10 costs.  