Fliess v. . Buckley

Danforth, J. We concur with the court below in the opinion that the demurrer was well taken. Fi/rst, As to William M. Fliess: Notwithstanding the foreclosure of the first mortgage on the Myrtle avenue lot, his mortgage continued a lien, and, as such, followed the surplus into the hands of the county treasurer. His remedy, therefore, was to enforce his claim, in the court by whose directions the foreclosure had taken place. He requires no other action, nor has he any interest in the relief sought by the other plaintiffs. He fails, therefore, upon both grounds. Second, As to the claims of William M. Fliess and Sarah Fliess as executors of the will of Robert A. Fliess. 1st. The learned counsel for the appellants disclaims any intention to charge the devisees of John Buckley personally, but declares *292 “ the action is in rem to apply the fund to the parties whose superior equity entitles them to it.” It is precisely this object which the proceedings already pending in the court will attain, if it is limited to those claimants who have in any form a lien upon the fund, or who, by virtue of any lien upon the land, are entitled to follow its proceeds. We see no difficulty in having it determined by the referee therein, whether their judgments are liens upon the fund, and if they are, in what relative order they should be paid. So, also, the claims of the defendants: They too are open, not only to observation, but to attack, and any questions which could be raised in an independent or original action can be raised before the referee, and be determined with like effect. (Beckman v. Gibbs, 8 Paige’s Ch. 511; Bergen v. Carman, 79 N. Y. 146; Dunning v. Ocean Nat. Bank, 61 id. 497.) It is certainly difficult to see in what manner, if at all, the executors of Robert Fliess have acquired such lien, and it is argued in behalf of the appellants that for that very reason this action is made necessary. But what can it affect? The plaintiffs are not execution creditors; as such, therefore, they can reach no equitable interests. They gain no priority over other creditors of John Buckley or his estate, by virtue of their judgments, and can be paid only in due course of administration. (Adsit v. Butler, 87 N. Y. 585; Schmitz v. Langhaar, 88 id. 503.) The allegation, that the administrators of John Buckley have not advertised for claims against his estate, is immaterial. The notice is for the protection of the administrators, and there is no" absolute legal obligation to give it at all. (Bullock v. Bogardus, 1 Denio, 276.) „ Other points have been argued and examined. They are found to be without substance. We discover no ground upon which, in any aspect, this action can be maintained by either plaintiff, and think the judgment appealed from should be affirmed. All concur, except Rapallo, J., absent. Judgment affirmed.