In re Title Guarantee & Trust Co. , 31 N.Y.S.2d 866 ( 1941 )

In a proceeding under section 1077-c of the Civil Practice Act, order denying appellant’s motion to confirm the report of an official referee, which required the surplus to be paid to appellant in reduction of the mortgage, reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs. In our opinion the mortgagee is entitled to the surplus. Johnston, Adel and Taylor, JJ., concur; Lazansky, P. J., and Close, J., dissent and vote to affirm, being of the opinion that under the peculiar circumstances of this case the discretion of the Special Term was fairly and equitably exercised.