#### Matthias L. Lord, Plaintiff, *v.*Augusta S. Anderson et al., Defendants.

(County Court, Monroe County,

March, 1910.)

Foreclosure of mortgages on land — Foreclosure by action and sale — Distribution of proceeds and surplus — Payment into Surrogate’s Court.

Where more than four years have elapsed since letters testamentary were issued upon the estate of the owner of the equity of redemption of mortgaged premises, the provisions of section 2798 of the Code of Civil Procedure for the payment of the surplus moneys arising on foreclosure into the Surrogate’s Court do not apply.

Motion for the confirmation of the report of the referee appointed in proceedings to distribute a surplus arising upon the foreclosure of a mortgage.

J. Frank Morse, for motion.

Charles M. Williams, opposed.

Stephens, J.

The referee reports that the surplus should be distributed to the devisees under the will of Sarah A. Whitbeclc, and that there are no other liens against the sur plus superior to the right of said devisees.

The confirmation of the report is oppiosed by a creditor of said Whitbeclc who secured a judgment against the executor of the will of said Sarah A. Whitbeclc, individually and in his representative capacity; and it is the debt established by *594this judgment that is claimed to he a charge against the surplus prior to the interests of the devisees.

The facts upon which the objections rest are made to appear by affidavit. They relate to matters of record and are considered upon this motion to the same purpose as if they appeared from the referee’s report.

On behalf of the said devisees it is urged that, because more than four years have elapsed since letters testamentary were issued upon the estate, the right to have the surplus administered in Surrogate’s Court, pursuant to section 2798 of the Code of Civil Procedure, does not exist.

. In this latter view I concur. The section of the 'Code referred to is a substitute for chapter 658 of the Laws of 1867 as amended by chapter 834 of the Laws of 1871. By the latter act it was expressly provided that the former one, permitting or directing the payment of the surplus into the Surrogate’s Court, did not apply to any case where letters testamentary or letters of administration had been issued four years previously to the making of the sale on which such surplus moneys arise. The Code section was the codification of these two acts.

The case of White v. Poillon, 25 Hun, 69, sustains the conclusion at which I have arrived.

While there are other cases which lend argument to the opposing view, it is not apparent that there is any one of them in which the question was practically presented for decision whether or not the provisions of said section 2798 were applicable, after a lapse of four years from the granting of letters testamentary or of administration. Matter of Callaghan, 69 Hun, 161; Felts v. Martin, 20 App. Div. 60; Hughes v. Golden, 44 Misc. Rep. 128; Matter of Bernstein, 58 id. 115. Mead v. Jenkins, 27 Hun, 570; 29 id. 253; 95 N. Y. 31, relates to a proceeding instituted before the Code of Civil Procedure was enacted.

The objections are overruled and the report of the referee confirmed.

Beport of referee confirmed.