Lauterjung v. Williamson , 14 N.Y. St. Rep. 856 ( 1888 )

O’Gorman, J.

This is an action in foreclosure. Judgment was entered on December 22, 1886. Charles Goeller was, in May, 1887, duly appointed referee, and as such referee, and under special order of this court, dated May 23, 1887, he duly gave public notice of the sale of the mortgaged premises, on March fifteenth next. This notice is dated February 15, 1888. On March 6, 1888, he received a written notice, purporting to have been signed by N. G. McCrea, that the judgment of foreclosure in the action had been paid and satisfied, in full, and that the mortgage on which the action was brought had been satisfied of record, and that he (McCrea) held a release from the plaintiff of all claims in the action. McCrea also protested against any sale of the premises.

The referee has expended money in notices of sale, adjournments, etc., and he now applies to this court for instructions as to his future action. He is an officer of the court, and justified in obeying its orders unless revoked. This action, in noticing the mortgaged property for sale, seems to have been under order'of the court, which has not been revoked, and he would be justified in obeying the order. He is entitled to payment of his expenses incurred in carrying out the orders of the court, and neither the satisfaction of the mortgage or of the judgment can affect his rights.

The mortgage is, technically speaking, merged in the judgment, and the satisfaction of the judgment cannot oust or displace or impair the rights of .this officer of the court, without an order from the court to that effect.

This is my opinion, and the referee must act on it as he may deem expedient, or ask such specific relief as he thinks he is entitled to and may be needed for his protection.