The Allerwan Company, Plaintiff, v. Laura M. Hermann and Others, Defendants, Impleaded with Union Bank of Brooklyn, etc., Appellant, and Laura T. Burton and Others, Respondents

The Allerwan Company, Plaintiff, v. Laura M. Hermann and Others, Defendants, Impleaded with Union Bank of Brooklyn, etc., Appellant, and Laura T. Burton and Others, Respondents. [MAJORITY] Order reversed on the law, with ten dollars costs and disbursements, motion to confirm referee’s report denied, with ten dollars costs, and an order directed to be entered that the appellant’s claim to the surplus moneys under its mortgage is valid and superior to the claim of the respondents and that the appellant is entitled to said surplus moneys. In our opinion, the filing by the appellant of its claim to the surplus moneys constituted a commencement of the proceeding and preserved the hen of its mortgage thereon. Lazansky, P. J., Young, Carswell, Scudder and Tompkins, JJ., concur.