
    (82 Hun, 220.)
    WINSLOW v. CARTHAGE, W. & S. H. R. CO. et al. In re UPHAM, County Treasurer.
    (Supreme Court, General Term, Fourth Department.
    December 7, 1894.)
    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 “ad-
    
      justing his fees as county treasurer in the receiving and paying out” of the money; but he should apply for instructions, and ask for an allowance of such fees as he might be entitled to. Merwin, J., dissenting.
    Appeal from special term, Jefferson county.
    Action by Norris Winslow, as trustee, etc., against the Carthage, Watertown & Sackets Harbor Railroad Company and others, to foreclose a mortgage. The money was paid into court by paying it to the county treasurer, and the complaint was dismissed. Thereupon the following order was made:
    “A motion having been made on behalf of Addison L. Upham, treasurer of Jefferson county, based on his affidavit dated March 14, 1894, and upon the orders, 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. Wool worth, 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 Sackets Harbor Railroad Company and Norris Winslow, as trustee of the first mortgage of the Carthage, Watertown, and Sackets 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. Griffin, of counsel for Norris Winslow, the plaintiff in the action, in opposition, it is ordered that the fees of Addison L. Upham, 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 Sackets 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 Sackets 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 Sackets Harbor Railroad Company in his hands to the said Carthage, Watertown, and Sackets 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 thé said fund. It is further ordered that the Carthage, Watertown, and Sackets 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.”
    Norris Winslow, the trustee named in the mortgage, appeals. Modified.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    D. Gr. Griffin, for appellant.
    Smith & Smith, for respondent Addison L. Upham.
   HARDIN, P. J.

After the commencement of this action (October, 1891) to foreclose a mortgage given to the plaintiff, as trustee, and to his cotrustee, Sherman, a tender was made by the Carthage, Watertown & Sackets Harbor Railroad Company on the 6th of January, 1892. Thereafter an amended answer was served by the Carthage, Watertown & Sachets Harbor Railroad Company alleging the tender; and it is alleged in the answer of the Carthage, Water-town & Sachets Harbor Railroad Company that the money was on or about June 4, 1892, “duly paid into this court to the credit of this action, by paying the same to the county treasurer of Jefferson county, that being the county in which this action was triable.” The issues joined by the answer were put to a trial at a special term in Jefferson county, and the court found that the tender was sufficient, and dismissed the plaintiff’s complaint on the merits, with costs to defendants, and a general judgment to that effect was entered upon the decision so made. In the findings made it is stated “that the said moneys and checks so deposited with Vermilye & Co. remained there on such tender until on or about June 4, 1892, when they were duly paid into this court to the credit of this action, by paying the same to the county treasurer of Jefferson county, that being the county in which this action is triable; and the said moneys can now be had by the parties entitled thereto upon the delivery of the bonds and coupons aforesaid.” It was found that the mortgage contained no provision which required the mortgagor to pay the expenses and compensation of the trustees.

There has been no formal judgment or order entered authorizing the county treasurer to pay out of the court the funds so deposited with him. The trustees have a lien on said funds for their compensation. Woodruff v. Railroad Co., 129 N. Y. 27, 29 N. E. 251. The county treasurer has not been authorized by any formal order to pay over the fund which came into his hands as the fruit of this action, and no adjudication has been made which discharges the lien which the trustees have upon such fund. The extent of that lien ought not to be determined without notice to the Lincoln National Bank. If the county treasurer had applied for instructions as to the fund, and given notice of his application to the bank,, he might have obtained the direction of the court as to the fund, the extent of the lien thereon of the trustees, and an allowance of such fees as he was entitled to receive. Instead of adopting that course, he has made the motion which led to the order now under review. In his notice of motion he asks for an order “adjusting his fees as county treasurer in the receiving and paying out in this action the moneys,” etc. He thus assumed that he had received and paid out the moneys as an officer of the court.

The special term has by its order allowed the county treasurer $500, to be paid by the Carthage, Watertown & Sachets Harbor road. The Carthage, Watertown & Sachets Harbor road has not appealed, and therefore is not entitled to complain; and, as the appellant does not ask to have that part of the order reversed, there is no occasion to interfere with that part of the order. The foregoing views lead to a modification of the order.

Order modified by striking out all of 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,” and, as so modified, affirmed, without costs.

MARTIN, J., concurs. MERWIN, J., dissents.  