
    The Germania Life Insurance Company v. Joan Rae et al.
    (Argued June 16, 1885;
    decided June 26, 1885.)
    This was a contest for surplus moneys in a foreclosure suit.
    One Kirk claimed the surplus as mortgagee under a junior mortgage. One Datter claimed under a judgment against the mortgagor. The mortgage was prior in its apparent lien to the judgment. The referee to whom the matter was referred found that the mortgagee was entitled to the surplus, and an order was entered to that effect. The General Term reversed the order and directed the surplus to be paid to the judgment creditor.
    The court here, after discussing the testimony and the facts appearing therefrom, say: “We deem it entirely unsafe to destroy the mortgage upon such a state of facts, and in the absence of satisfactory proof impeaching it,' and so are con-° strained to disapprove the order appealed from, except so far as it set aside the order of the Special Term. In view of the uncertainty as to the amount due on the Kirk mortgage and the very meagre information furnished by the proofs, the General Term might justly have reversed the action of the Special Term, and sent the case back for a rehearing, as was indeed advised by the dissenting member of the court. We think it our duty to make that disposition of the appeal.”
    
      
      Oliver M. Benedict for appellant.
    
      William McDermott for respondent.
   Finch, J.,

reads for reversal of order of General Term so far as it awards priority in the surplus to the Batter judgment, and case sent back to the referee for a rehearing.

All concur.

Ordered accordingly.  