ascertain and report the facts as directed in the order of his appointment; such report should show on its face that every party entitled to notice to attend upon the reference, was duly summoned to appear; it should also state what parties appeared on the reference.'

After the report of the referee has been prepared it should be filed, and an order for the confirmation thereof should be entered with the order for the distribution of the surplus. The latter will be granted as a matter of course, unless exceptions to the report have been filed within the time allowed. The order of distribution, however, should never be granted until the time has expired within which exceptions to the report may be filed.'

$763. Exceptions to the referee's report. Any person interested in the distribution of the surplus moneys may file exceptions to the report of the referee, if he considers himself aggrieved thereby; if two or more persons wish to file the same objections to the report, they may do so either by joining in the same exceptions or by stating their exceptions separately. Parties who have appeared on the reference, are entitled to notice of the filing of the referee's report,' and their exceptions thereto, if any, must be filed within eight days from the date of the service of such notice, or the report will stand confirmed. If such exceptions to the referee's report are filed and served as above specified, they may be brought to a hearing at any special term of the court, on the notice of any party interested therein.'

Where parties who have appeared on the reference are entitled to file exceptions to the report, they must be served

nevertheless, file them with his report, even though the stenographer's fees remain unpaid. Pope v. Perault, 22 Hun (N. Y.) 468 (1880)."

1 Franklin v. VanCott, 11 Paige Ch. (N. Y.) 129 (1844); Hulbert v. McKay, 8 Paige Ch. (N. Y.) 651 (1841). See Cram v. Mitchell, 3 N. Y. Leg. Obs. 163 (1844); Burchard

v. Phillips, 3 N. Y. Leg. Obs. 35 (1844).

Franklin v. VanCott, 11 Paige Ch. (N. Y.) 129 (1844); Ex parte Allen, 2 N. J. Eq. (1 H. W. Gr.) 388 (1841).

3

N. Y. Supreme Court Rule 64. 4 N. Y. Supreme Court Rule 30.

with notice of the filing thereof; unless exceptions are served and filed by them within eight days after the service of the notice of filing the referee's report, such report will become absolute.' And where no exceptions are taken to the report by such parties, it must be confirmed by the entry of the usual order; proof by certificate or affidavit that such report has become absolute must be produced, before an order to pay the amounts reported will be granted.'

$764. Hearing exceptions to report.-Where exceptions have been filed to the referee's report and a motion for the final hearing is brought on, the party excepting must furnish the court with copies of the report and of the exceptions and proofs of claims. The rules of the New York supreme court' require that the testimony taken by the referee shall be signed and filed. But in those states where the testimony is not required to be annexed to and returned with the report, if the party excepting thereto desires to review some question upon the evidence taken before the referee, or if any party desires to use such evidence on the argument of the exceptions, a duly certified copy thereof must be obtained from the referee."

At such hearing the court will not only look to the proofs of claims, but it will also receive any other evidence in its discretion, such as stipulations, and the admissions. of the parties presented on the hearing.' But affidavits taken subsequently to the report can not be read at such hearing, and no evidence can be produced which was not introduced before the referee."

If the court allows the exceptions or any of them, it may modify or set aside the report, or send it back to the referee with proper directions to proceed thereon de novo, or to

'Catlin v. Catlin, 2 Hun (N. Y.) 378 (1874); N. Y. Supreme Court Rule 30.

2 Franklin v. VanCott, 11 Paige

Ch. (N. Y.) 129 (1844).

1 VanSant Eq. Pr. 571.

N. Y. Supreme Court Rule 30.
See ante § 761.

In re Merritt, 1 VanSant. Eq. Pr. 566 n; 1 Hoff. Ch. Pr. 545; 1 Barb. Ch. Pr. 549.

7

Gregory v. Campbell, 16 How. (N. Y.) Pr. 417 (1858).

Hedges v. Cardonnel, 2 Atk. 408 (1742). See Jenkins v. Eldredge, 3 Story C. C. 299, 306 (1845).

correct specified defects therein, as by ascertaining some fact which may be necessary to enable the court to reach a proper decision. In any event, a new order of reference should be made, reserving the distribution of the surplus and the costs of the proceeding until the coming in of the new report.

8765. Confirmation of referee's report.-The court has power in its discretion to confirm, or set aside, or refer back the report of a referee appointed to ascertain the rights of claimants to surplus moneys on foreclosure, and is not restricted in the exercise of this power by the rules governing a motion for a new trial.'

$766. Opening and setting aside referee's report.After a sale under a foreclosure, and before the distribution of the surplus moneys, a party who has a judgment lien on the premises at the time of the sale may have the proceedings opened, so that he may be heard upon his right to share in the surplus; because, while the moneys remain in the court undistributed, it may at any time vacate an order confirming the report and refer the matter back to the referee for a further report. Thus, it has been held that where a general creditor, who had no notice of the proceedings to distribute the surplus until after the entry of the order confirming the report of the referee, applies to be made a party to the proceeding, his application should be granted.

But where the report of the referee directs a distribution of the surplus as it should be legally and equitably made, his report will not be set aside or disregarded, or the order confirming it vacated, simply on account of an irregularity

1 Mutual Life Ins. Co. v. Anthony, 23 N. Y. Weck. Dig. 427 (1886); Dold v. Haggerty, 24 Hun (N. Y.) 383 (1881); s. c. 11 Rep. 746; Mutual Life Ins. Co. v. Salem, 3 Hun (N. Y.) 117 (1874); s. c. 5 T. & C. (N. Y.) 246.

2 Citizens' Savings Bank v. Van Tassel, N. Y. Daily Reg., May 28

(1883); s. c. 5 Month. Law Bull. 50

8 Mutual Life Ins. Co. v. Salem, 3 Hun (N. Y.) 117 (1874); s. c. 5 T. & C. (N. Y.) 246.

* German Savings Bank v. Sharer, 25 Hun (N. Y.) 409 (1881).

in receiving or considering claims which were not filed with the county clerk.'

§ 767. Appeal from order for distribution.-Where a party finds himself aggrieved by the decision of the court on a motion for the confirmation of a referee's report, his remedy is by appeal.' But it was held in the case of the Mutual Life Insurance Company v. Anthony,' that an order of the general term reversing an order of the special term, which confirmed the report of a referee appointed to decide conflicting claims to surplus moneys arising on a foreclosure sale, and ordering a new hearing before another referee, is not reviewable by the court of appeals.*

If the inquiry is considered as a special proceeding under the Code, then the order of the general term is not final and consequently not reviewable. If it is regarded as an inquiry made for the information of the court, then the order is not appealable, both because it is not final and because it is discretionary. But where such an order imposes costs of the appeal upon the appellant absolutely, and not conditionally, it is in that respect a final determination from which an appeal can be taken.*

1 Kingsland v. Chetwood, 39 Hun (N. Y.) 602 (1886).

2 McRoberts v. Pooley, 12 N. Y. Civ. Proc. Rep. 139 (1887).

a 105 N. Y. 57 (1887).

• See Bergen v. Carmen, 79 N. Y.

146 (1879); s. c. sub nom. Bergen v. Snedeker, 8 Abb. (N. Y.) N. C. 50 (1879).

'Bergen v. Snedeker, 8 Abb. (N. Y.) N. C. 50 (1879).

CHAPTER XXXIV.

STATUTORY FORECLOSURE OR FORECLOSURE BY

ADVERTISEMENT.

POWER OF SALE-NOTICE OF SALE-PUBLISHING, POSTING, SERVING
-CONTENTS OF NOTICE-CONDUCT OF SALE-SETTING ASIDE-
ENJOINING-EFFECT OF SALE-AFFIDAVITS OF PROCEED-
INGS-RECORDING SAME-OPERATE AS DEED

TO PASS TITLE-U. S. LOAN COMMIS

SIONERS' MORTGAGES.