#### Sarah A. Neal, Plaintiff, *v.*Thomas Gilleran and Others, Defendants. E. Daniel Miner, Appellant; New York, Westchester and Boston Railway Company, Respondent.

Second Department,

January 10, 1908.

Motion and order — reference of issues of fact.

When upon a motion for a writ of assistance the case presents.serious questions dependent upon conflicting affidavits as to facts and a cross-examination of the affiants is essential for the proper determination of the questions, the court ■ in its discretion, under section 1015 of the Code of Civil Procedure, may refuse to permit the moving party to file affidavits in reply and refer the issues to a referee, reserving to the moving party the right to give such additional ■ evidence in support of the motion as he may desire.

Appeal by E, Daniel Miner from an order of the Supreme Court, •made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 11th day of October, 1907.

*E. Daniel*Miner, appellant, in person.

*Allen Wardwell,*for the respondent.

*640Rich,'J-.:'

'The Special Term a-ppoihted a -referee to take■ proof Of certain facts set forth in the affidavits read upon a motion for a writ of assistance. The motion'was based upon -the affidavit of the appellant setting forth tlie commencement ef an action on-August 28, 1905, to foreclose a mortgage- upon -real- estáte in the county of Westchester, which, it is- averred,-was-owned-when- the action was commenced by the defendant Gilleran-;-that judgment, of foreclosure and sale was duly granted and entered; that the. premises were sold by a referee and'purchased-by-the appellant, and that the report of sale was confirmed on February 23,-1907'; that-after the commencement óf the action and filing of the notice of jpendency, Gilleran conveyed said premises to the Hew York, Westchester, and Boston Railway Company, which entered into possession, and on August 1, 1907, refused, upon- exhibition of his deed by appellant and demaiid, to surrender the premises or to let him into possession; The railway company opposed the'motioh, "alleging''that before the commencement' of. the action Gilleran conveyed the premises ifi dispute to it; that it 'entered.into possession-and -commenced the construction of-its roadbed thereon, hut did not record -its deed until August 15, 1906; that one William Taylor was the owner of the mortgage foreclosed ; that he suggested the procuring of the .deed by the- company,, and that both lie. and his attorney in the foreclosure action knew before its commencement that the company had purchased and' was in possession of the' premise'sp' that the plaintiff in said, action, Sarah A. Heal, was a relative.and member of the family of, said,,,Taylor, had no interest in said, mortgage, and was a mere dummy"fof Taylor -and acting in liis interest-and to conceal his connection with"the matter; that appellant was~not a purchaser for value without notice; that when the-sale under'the foreclosure proceedings, was .made. its. deed was. recorded, it. was in possession of the land, its, right of way embankment was constructed, over the land',, and-notice, thereby wag given to any-proposed purchaser of its claim to some right in the' premises;.'that, appellant purchased for $1,700 and immediately endeavored to induce the company to'purchase to savevits rights atan increased and.excégsive price; that the company had no notiee-of, the foreclosure proceedings and was not made a party thereto'; that if the motion -was *641■ granted the company would be seriously damaged, its line of railway interrupted, its construction interfered with and work theretofore done destroyed, while if denied the moving party would not be damaged, as in an action for possession lie -could be adequately compensated in damages, and that upon the trial of such an action the company would be able to prove that it procured the deed of Gilleran with the knowledge of the plaintiff, her attorney and Taylor who was the real party in interest and the real plaintiff in the action, and knew of the ownership of the premises before the commencement of the action and filing of the *lisjpendens.*

When these affidavits were read the appellant asked leave to file affidavits in reply, which the court refused and, upon its own motion, made the order from which this appeal is taken, the order providing “that on such reference said El Daniel Miner” (the appellant) ,“ may produce and examine witnesses to contradict the facts stated in said affidavits of said Cokeley,. Buell and Gilleran, and to prove such other facts in support of said motion as he may be advised.”' Upon the facts presented the order was proper, and it was a proper exercise of the power vested in him by section 1015 of the Code of Civil Procedure. *(Matter of Hanlein,*65 App. Div. 161.) The case presented serious questions dépendent upon , conflicting affidavits, creating disputed questions of fact upon which the motion must turn, and it was essential for the proper determination of these questions that the affiants should be cross-examined. Instead of permitting the appellant to file additional affidavits the court sent it to a referee, reserving to the appellant the right to give such additional evidence in support of his motion as lie might "desire. It seems to me that this was a proper and commendable course for the court to take, and that the order should be affirmed, with costs.

Woodward* Jerks,. Gayror and Miller, JJ., concurred.

Order affirmed., with ten dollars costs and disbursements.