Opinion
December 18, 1936.
In an action to foreclose a mortgage upon real property, the defendants defaulted in pleading. They appeared, however, and served the usual notice, containing a demand for service of all other papers in the action, after service of the complaint. Upon notice, a referee to compute was appointed. He gave notice of hearing to compute, and the defendants defaulted. Upon the referee's report of amount due, the plaintiffs moved to confirm the report, and for judgment of foreclosure and sale. The application was opposed by the respondents, who alleged that the referee in computing failed to give credit for upwards of $3,000, alleged to have been paid on account of the principal sum. The court thereupon denied the motion to confirm the referee's report of amount due, sent the matter back to him for a further hearing on the additional payments claimed to have been made, and denied the motion for judgment, with leave to renew that application after the rehearing before the referee. The plaintiffs appeal from both parts of the order as well as from the order denying the motion for reargument. Order denying motion to confirm the referee's report and for judgment reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, unless within ten days from the entry of the order hereon respondents apply at Special Term for an order opening their default; in which event the motion to confirm referee's report and for judgment is denied. If they fail so to move, the motion to confirm the report and for judgment is granted. Appeal from order denying motion for reargument dismissed. In our opinion, the proceeding on the part of the plaintiffs was regular, but in the interest of justice the issue raised by the allegations of payment should be tried; Lazansky, P.J., Young, Johnston, Adel and Taylor, JJ., concur.