
    WINSLOW v. CARTHAGE, W. & S. H. R. CO. In re UPHAM, County Treasurer.
    (Supreme Court, General Term, Fourth Department.
    July 5, 1895.)
    Mortgages—Foreclosure—Compensation op Trustee.
    Where defendant, in an action to foreclose a trust mortgage, paid the amount of the mortgage debt to the county treasurer, and the court held that such payment was a sufficient tender, and dismissed the complaint on the merits, it is improper for the treasurer, before he is authorized By an order to pay over the fund, and before an adjudication has been made discharging the lien of the trustees on the fund, to move for an order “adjusting his fees as county treasurer in the receiving and paying out” of the money.
    Appeal from special term, Jefferson county.
    Action by Norris Winslow, as trustee, against the Carthage, Water-town & Sachet’s Harbor Railroad Company, to foreclose a mortgage. From an order directing the payment of certain commissions to the county treasurer the railroad company appeals.
    Reversed.
    The order appealed from is as follows:
    “A motion having been made in behalf of Addison L. Upham, treasurer of Jefferson county, based on his affidavit, dated March 14, 1894, and upon the crJers, judgments, and appeals in the above-entitled action, duly entered and filed in the office of the clerk of Jefferson county, N. Y.; and on the testimony of Addison L. Upham, Smith T. Woolworth, and Daniel G. Griffin, taken upon the hearing of said motion by the mutual stipulation of the attorneys for the respective parties, and on. proof of service of said notice of motion and affidavit on the Carthage, Watertown and Saeket’s Harbor Railroad Company and Norris Winslow, as trustee of the first mortgage of the Carthage, Water-town and Sacket’s Harbor Railroad Company, the plaintiff in this action, and proof of service of said notice of motion, on George H. Sherman and Roswell P. Flower, as trustees and defendants in said action; and on the affidavit of Daniel G. Griffin; and on the demand made by the plaintiff in the action on the said Addison L. Upham, as county treasurer, on the hearing of this motion, for payment of the fund involved in the motion, with interest thereon, to him, the plaintiff, as such trustee: and after hearing Hannibal Smith, of counsel for Addison L. Upham, treasurer of Jefferson county, and Daniel G. GrifBn, of counsel for Norris Winslow, the plaintiff in the action, in opposition,—it is
    “Ordered: That the fees of Addison L. TJpham, treasurer of Jefferson county, for receiving and paying $160,200, placed in his hands, be, and are hereby, established at five hundred dollars; and that the said Carthage, Watertown and Sacket’s Harbor Railroad Company be, and hereby is, ordered to pay to said Addison L. Upham or his attorneys the sum of five hundred dollars for such fees upon the service of a certified copy of this order on the said defendant the Carthage, Watertown and Sacket’s Harbor Railroad Company.
    “It is further ordered, that said Addison L. Upham, as treasurer of Jefferson county, be, and he is hereby, directed to refuse the demand of the plaintiff, Norris Winslow, as trustee, hereinbefore recited, and that said Upham deliver over the bonds of the Carthage, Watertown and Sacket’s Harbor Railroad Company in his hands to the said Carthage, Watertown and Sacket’s Harbor Railroad Company on its payment of his fees as hereinbefore provided; and that the said Addison L. Upham, treasurer of Jefferson county, shall be discharged from all further liability in relation to the said fund.
    “It is further ordered, that the Carthage, Watertown and Sacket’s Harbor Railroad Company pay to the attorneys for the said Addison L. Upham the sum of $2.67 disbursements incurred by the said Addison L. Upham on account of this motion.”
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    D. G. Griffin, for appellant.
    Hannibal Smith, for respondent.
   MARTIN, J.

Upon a former appeal from this order by the plaintiff, Norris Winslow, as trustee, this court modified it by striking out the second paragraph, beginning with the words, “It is further ordered,” and ending with the words, “shall be discharged from all further liability in relation to the said fund,” thus leaving the order, as modified, so that it directed the present appellant, the railroad company, to pay to the respondent $500 for his fees, and $2.67 for his disbursements, with that portion of the order which required the respondent upon this appeal to deliver to the appellant herein its bonds to the amount of $160,000, which were in his hands, upon payment of such fees, stricken out, at least so far as the plaintiff, the then appellant, was concerned. 32 N. Y. Supp. 56. The whole order was not reversed upon the former appeal for the sole reason that the Carthage, Watertown & Sacket’s Harbor Railroad Company had not appealed, and it was, therefore, assumed that it was satisfied with it Upon this appeal the question is presented whether the whole order should or not be reversed. Although it is difficult to discover any principle upon which the special term could properly require the appellant to pay the respondent $500 for his fees, yet, without discussing that question, and independent of it, we are of the opinion that the whole order should be reversed, so as to avoid any complications that may arise by reason of the reversal of a portion of the order and leaving the rest undisturbed; as, under such circumstances, it may perhaps be claimed with some show of reason that the respondent is entitled to recover his fees and disbursements without complying with that portion of the order which required him, upon the payment of his fees, to deliver the bonds in his hands to the railroad company. It is manifest from the opinion of this court delivered upon the former appeal that, if the present appellant had then appealed from the whole order, it would have been reversed. As it is now appealed from, in view of our former decision, we think it should be reversed, thus leaving the whole matter open to future action by the court below, thereby avoiding the complications suggested. But, as the appellant did not join in the former appeal, we think no costs should be allowed.

Order reversed, .without costs to either party.

HARDIN, P. J., concurred. MERWIN, J., concurred in result.  