
    In the Matter of William H. Silvernail, an Attorney.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September, 1887.)
    
    1. Mortgage—Foreclosure of—Disposition of surplus—Attachment THE PROPER PROCEEDING ON FAILURE TO OBEY THE ORDER.
    Where after a foreclosure sale there remains a surplus, which has not been paid in, an order directing the holder to pay it and directing his imprisonment if he makes default in payment, is a proper exercise of the authority, which the court must sometimes exercise over its delinquent officers.
    3. Payment—Evidence of—When checks are inadmissible—Effect of FAILURE TO SUPPORT A PRESUMPTION WHEN RAISED.
    In order to prove a payment, checks are inadmissible, unless they are shown to be connected with the case. Where there are numerous other transactions, there can be no presumption that the checks offered in evidence apply to the particular payment to be proved. There must be some affirmative evidence that they apply to the transaction in question, and the fact that a presumption of payment is simply suggested, instead of evidence being offered, compels the conviction that none is offered because there is none.
    8. Evidence—Entries in official books—Death of official—How proved.
    When an official has died, and it is desired to prove the entries in the book, the proper method of proof is the testimony of a witness who has examined the books.
    
      William II Silver nail', att’y, for app’lt; Oar denier <Sr Harder, atty’s, for resp’L
   Landon, J.

This is a proceeding to compel the defendant to pay to the county treasurer the surplus moneys which came to his hands as an attorney of this court upon a foreclosure sale.

The defendant, as the attorney for William A. Case, foreclosed a mortgage by action in the supreme court, in which Case was plaintiff and the petitioners in this proceeding, as owners of the equity of redemption, were defendants.

The mortgaged premises were sold pursuant to the judgment by one Gardenier, the referee to make the sale, to one Nixdorf, for $1,425. The referee and the defendant occupied offices in the same building, and the referee executed the usual referee’s deed, delivered it to the defendant, and he delivered it to Nixdoi’f, the purchaser, who paid the defendant the full amount of the purchase money

The special term, upon the testimony taken before the referee and upon his report thereon, finds that the defendant did not pay any of the surplus money either to the referee or to the county treasurer. The amount of such surplus money is found to be $809.77, and the special term directed the defendant to pay the same with interest from October 1, 1875, the date when he ought to have paid it, together with $195.26 costs of this proceeding, making a total of $1,573.38, and in default of payment after ten days from the service upon him of a copy of this order, directed that an attachment issue, and the defendant be thereupon imprisoned in the county jail until such payment be made or he be discharged by law.

A perusal of the evidence satisfies us that the findings of the special term state the truth of the case.

The defendant retained this surplus money without right and without excuse.

The order of the special term directing him to pay it, and directing his imprisonment if he made default in payment, was a proper exercise of the authority which the court must sometimes exercise over its delinquent officers.

On the merits the order should be affirmed.

The defendant, however, intei’poses numerous objections to the proceeding and to the rulings of the referee.

We have examined them all and are satisfied that no substantial right of the defendant has been denied him.

It is true that the purchase-money ought to have been paid to the referee and not to the attorney, but that is an objection of which the attorney, who procured it to be paid to himself, cannot be permitted to take advantage.

The defendant offered in evidence sundry checks showing payment of money by the defendant to the referee. It was objected that these checks had no connection with this transaction. On the face of them they liad not, and as the defendant did not when his attention was called to the matter by the objection, offer to show that they had, the checks were properly excluded. If the checks had been received they could not have aided the defendant, unless he could connect them with the case, and hence the exclusion did not prejudice him. The defendant claims that presumptively these checks were on account of this surplus money. The testimony given showed that there were numerous transactions between the referee and the defendant, and there could be no presumption that these checks applied to this transaction to the exclusion of every ether. What was needed was some affirmative evidence I hat they applied to this transaction; and the fact that the defendant simply suggested a presumption instead of offering evidence compels the conviction, that he offered none, because he had none to offer.

The money having been paid to the defendant by the purchaser, it was defendant’s duty to pay it to the referee. It was affirmatively shown that he aid not do this, and evidence was given tending to show that he had not paid it to the county treasurer.

The burden, however, rested upon the defendant to show that he had paid it to the treasurer, if such was his defense. The petitioners were not bound to assail a' defense which was not made by the defendant, and if it should be held that the treasurer’s books offered for that purpose were inadmissible, it would not in any way weaken the petitioners’ case. Failure by the petitioners, to prove non-payment to the treasurer is not the equivalent of proof of payment by the defendant: But the treasurer’s books were competent evidence. The treasurer is dead. The entries were in his handwriting. It was his duty to enter the receipt of surplus moneys therein. The fact that there was no entry of this money therein was some slight evidence that it had not been paid to him. It was not necessary to return these books as a part of the case. The proper method of proof was resorted to, namely, the testimony of a witness that he had examined the books and searched for such an entry and found none.

The order directed the referee to take the testimony and report it,.with his opinion thereon, to the court. The referee was not bound to take irrelevant testimony. We do not perceive that he rejected any that did touch the issues.

The objection that the referee did not file his report and testimony taken, with the clerk, seems to be answered by the clerk’s certificate to the appeal book.

If the defendant is the owner of any judgment which is a lien upon the surplus moneys, he should file his claim and proceed under the rule to establish it.

Costs were properly allowed. This is a special proceeding to compel an attorney to do his duty, not simply a motion in the foreclosure case.

Substantial justice has been done, and the defendant urges no objection which can avail to defeat it.

The order is affirmed, with costs.

Learned, P. J., and Williams, J., concur.  