
    Frances A. Baker, Pl’ff, v. Benjamin M. Baker, Resp’t, Johanna S. Wood, Adm’rx, et al., Impl’d, App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    ^Foreclosure—Surplus proceedings—Bar.
    An interlocutory judgment in an action to declare a deed a mortgage so adjudging, and directing an accounting as to the amount due the mortgagee, where the plaintiff died before the accpunting was had and the action was not revived, is not a bar to surplus proceedings in an action brought to foreclose a prior mortgage, as the parties are not the same, the former action has abated, and the referee in the surplus proceeding has full power to hear and determine any legal or equitable claims to the surplus.
    Appeal by the defendants Wood from an order made upon the petition and motion of the defendant Benjamin M. Baker for a reference to determine claims to surplus moneys.
    
      Q. Van Voorhis, for app’lt; John D. Lynn, for resp’t.
   Lewis, J.

A judgment was obtained in the above entitled action for the foreclosure of' a mortgage and the sale of mortgaged premises. Upon the sale there arose a surplus of $4,474.31. The petitioner, Benjamin M. Baker, one of the defendants in the action, claimed the surplus money as á junior mortgagee, and petitioned the court for an order directing said surplus moneys to be paid to him. His application was opposed by the defendants, William O. C. Wood and Johanna S. Wood, on the ground that there was a prior action pending in the supreme court, in which action the right of the claimant to the moiieys was being contested, and that a full accounting could be had and a complete adjudication made in regard to the surplus moneys in that action. It appeared upon the hearing of the motion that one Herman Wood, deceased, was in his life time the owner of the mortgaged premises, and that in the year 1871 he executed and delivered to the petitioner an instrument in writing which was in form a deed, but which was in fact intended as a security for money loaned. An action was commenced in the supreme court by said Wood against Baker seeking to have said deed declared a mortgage; and an interlocutory judgment to that effect was obtained. A referee was appointed by said judgment, to take an accounting and inquire and ascertain what, if anything, was due Baker as such mortgagee. After the entry of said judgment, and on or about the 2nd day of August, 1891,"the plaintiff Wood died. The motion has never been revived, and has since remained in a condition where no accounting could be bad therein; and this is the judgment which it is claimed is a bar to this proceeding.

Where two proceedings are pending between the same parties for the same object, the one first commenced is, as a general rule, .a bar to the second proceeding; but we are inclined to the opinion that this proceeding is an exception to that rule. These surplus moneys have arisen out of an action for the foreclosure of a mortgage, in which Frances A. Baker was plaintiff, and the petitioner, Benjamin M. Baker, and others were defendants. The moneys have been paid into court in this action, as required by § 1633 of the Code, and they are now under the control and jurisdiction of the court in the foreclosure action, and it is fitting and proper for the court in that action to distribute the same by this proceeding, which is an incidental, or interlocutory, reference, under § 1015 of the Code. Upon the hearing before the referee all parties to the action, or any person who had a lien on the mortgaged premises at the time of the sale, and who has filed proper notice, is entitled to notice thereof, and can appear and be heard. The powers of the referee aré very broad in such a proceeding. He can hear any evidence which may be offered affecting the judgment or lien upon which the claim to the surplus is founded. He can take ■evidence or investigate any legal or equitable question pertaining to the issue the same as could be done in an independent or original action. He is required to find facts and conclusions of law. The parties to this action are not the same as they were in the action of Wood against Baker. The action sought.to be used in bar ■of these procedings, as we have seen, a'bated by the death of the plaintiff. It has not- been since revived, and from the facts appearing upon the hearing of the motion it is altogether probable that nothing will ever be done looking to its revival.

The order appealed from was properly granted, and it should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., Macomber and Haight, JJ., concur.  