116 N.Y.S. 336 | N.Y. App. Div. | 1909
There are two claimants to the surplus arising in the foreclosure sale in this action, Charles M. Holcomb, who held the legal title of record to the premises at the time of the sale, and Harriet E. Whelpley, the grantor in the deed by which Holcomb held title. The claim of the latter is that the deed to Holcomb was procured from her by fraud and misrepresentation, and this contention was upheld by the learned referee and by the court in confirming his report. It is urged on this appeal that the report of the referee did not conform to the provisions of the Code of Civil Procedure (§ 1022) in that there are no separate findings of fact and • conclusions of law, and that consequently the order cannot be sustained. It does not appear to be necessary to go into this question at this time for the reason that the objection comes too late. The appellant has acted upon the report of the referee without objecting to the form of the determination ; if he was not satisfied with the form a motion to have referred the same back to the referee for correction would have raised the point and if necessary the error could have been cured there.
This same question was referred to a referee prior to the one whose decision is now under review, and the report made in that instance in favor of the claimant Holcomb was refused confirmation. The evidence appears to have been practically the same before the present referee, and the report has been confirmed, holding the surplus belongs to the claimant Whelpley. It appears that one Charles Cranston owned the premises out of which this surplus arises ; that the claimant Holcomb is his nephew and one of the executors of Pis last will and testament, while the claimant Whelpley was his housekeeper during several years of his lifetime and at his death. Some time prior to his death Cranston had some trouble with a man by the name of Glass, a litigation between the two
We think the order appealed from has properly disposed of the question of ownership of the surplus moneys and that the appellants have no ground for complaint.
The order appealed from should be affirmed, with costs.
Hieschbeeg, P. J., Jenks, High and Milleb, JJ., concurred.
Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.