Opinion of the Court, per BARTLETT, J. [Vol. 147. passed from the original receiver to the present receiver by virtue of the order of March 20th, 1894, to which reference has already been made. We think this position is unsound and arises from a failure to apprehend the proper functions of a receiver appointed in proceedings supplementary to the execution. It is true the Code of Civil Procedure (§ 2468) provides that on filing the order appointing the receiver, or a certified copy, in the county where the property is situated, the real property is vested in the receiver. This section, however, is to be read and construed in connection with the other provisions of the statute and cannot be taken literally. It must be constantly kept in mind that the receiver is appointed in proceedings supplementary to the execution and takes no such absolute title to real estate as would enable him to sell it when it is subject to the lien of judgments and can be sold under executions issued thereon in the manner pointed out by statute and subject to all rights of redemption. The receiver's title to the real estate is a qualified one in the nature of a security for the plaintiff in the judgment; it does not divest the debtor of the legal title, but the latter's conveyance of the premises would be subject to the claim of the receiver. The proceedings supplementary to the execution, as provided by the Code of Civil Procedure, are a substitute for the former creditors' bill in chancery and are a summary mode of ascertaining the judgment debtor's property interests of every kind. It is only when the remedy at law has been invoked and exhausted that the creditor may avail himself of those more effective remedies which are to be found in a court of equity. Applying these principles to the situation presented in the case at bar when the original receiver was appointed in 1876, we find, so far as this record discloses, that the judgments of the two banks, under which supplementary proceedings were instituted in the city and county of New York, were not docketed in Westchester county; that no executions have N. Y. Rep.] Opinion of the Court, per BARTLETT, J. ever been issued to the sheriff of Westchester county; that no effort has been made to exhaust the remedy at law as to this property. So far as relates to the Westchester real estate the judgment creditors did not require the aid of a receiver, or of a court of equity to sell the interest of the judgment debtor therein; it was only necessary to sell under execution at law in the manner provided by the statute. It, therefore, follows that the supplementary proceedings instituted in the city and county of New York in 1876, and the filing of orders in Westchester county were ineffectual to vest in the receiver appointed therein any interest whatever in the Westchester real estate. The issuing of executions to the sheriff of the city and county of New York, and the return thereof unsatisfied, did not tend in any way to show that the remedy at law had been exhausted as against the Westchester real estate. This court has recently construed the Code of Civil Procedure (§ 2468) as to vesting the debtor's real property in a receiver appointed in supplementary proceedings. (Importers and Traders' National Bank v. Quackenbush, 143 N. Y. 567, and cases cited.) Judge O'BRIEN says: "But this provision cannot refer to real estate which is not bound by the lien of any judgment, or against which no execution has been issued upon which it could be sold. As to real estate so situated, the creditor does not need a receiver or any other equitable relief. A court of equity will never appoint a receiver for the purpose of doing for the creditor what he may do for himself." Under the rule as thus laid down the conveyance made to Valentine by the executrix of the judgment debtor in 1878 of his interest in the Westchester real estate vested a good title free from the liens of the judgments of the two banks or of any claim of the receiver. If we assume, for the argument's sake, that the judgments were docketed in Westchester county, they ceased to be liens after ten years from the filing of the judgment roll, so that Opinion of the Court, per BARTLETT, J. [Vol. 147. since 1886 the property has not been subject to execution and sale under the judgments. (Code, § 1251.) The appellant became the owner of the entire property in 1885 under the sale in partition. It also appears that no liens were established before the referee in the partition action, although opportunity was duly afforded as provided by law. The judgment creditors had, for ten years from the filing of the judgment rolls, an ample remedy at law against this property which they failed to invoke, and if they were damaged by the conveyance of the executrix of the judgment debtor to Valentine during that period, it was due to their failure to at once docket the judgments in Westchester county and proceed to sale thereunder. Having suffered their remedy at law to lapse, all equitable remedies are also cut off. (Borst v. Corey, 15 N. Y. 505.) The attempt to break the force of the deed from the executrix to Valentine, and the partition suit based thereon, by the affidavit of Valentine, to the effect that he never accepted the deed and did not institute the partition action, must fail for two reasons, viz.: First, the collateral attack on the deed and partition suit cannot be entertained on this motion; and, second, the affidavit is wholly discredited by the complaint verified by Valentine in an earlier partition suit relating to the same premises, but which did not proceed to judgment, wherein he alleges that he had an estate of inheritance in the property consisting of an undivided fourth interest. We are of opinion that the appellant, as the grantee of the judgment debtor's title, had a standing in court, was entitled to make this motion, and that it should have been granted. The orders of the Special and General Terms should be reversed, with costs to the appellant in all the courts, and the order entered at Special Term May 10th, 1894, authorizing and directing the receiver to sell the real property in question should be vacated. All concur. Ordered accordingly. JOHN A. FOWLER et al. v. THEODORE FOWLER et al. JAMES A. MERKITT, Respondent, v. JOHN A. FOWLER, Impleaded, etc., et al., Appellants. Motion COSTS DISTRIBUTION OF MONEYS IN PARTITION ACTION. costs and disbursements, and not costs as in an action, are allowable in a proceeding for the distribution, among lienors, of moneys in the hands of a referee arising from a sale in an action of partition. Mem. of decision below, 86 Hun, 619. (Argued November 25, 1895; decided December 10, 1895.) APPEAL from order of the General Term of the Supreme Court in the first judicial department, made April 11, 1895, which affirmed an order of Special Term denying a motion to vacate an order directing the payment of certain moneys in the hands of a referee to the respondent, James A. Merritt. The material facts are stated in the opinion. Isaac N. Miller for appellants. The court had no power to award costs as in an action. (Code Civ. Pro. §§ 1015, 3236, 3251; Concklin v. Taylor, 68 N. Y. 221; Bishop v. Hendrick, 82 Hun, 324.) William H. Beam for respondent. The referee awarded costs to all attorneys who appeared, whether their claims were successful or not. The costs to the respondent included the fees of the referee. In the disposition of the fund in its custody the court had a right to impose the expense of ascertaining the proper claimants upon the fund. the fund. Had no costs or disbursements been awarded the respondent would have had the benefit, and any surplus would have gone to the claimant Balet, adjudged to be entitled to be paid secondly. Neither respondent nor Balet complain, and in no possible event could the appellants be benefited. As to them this award is entirely immaterial. (F. L. & T. Co. v. B. & M. T. Co., 119 N. Y. 15.) If the referee erred in awarding costs his decision and that of the Special Term in confirming the Opinion of the Court, per HAIGHT, J. [Vol.147. report could not be cured by a motion, but can only be reached by an appeal from the report and order of confirmation. (Losee v. Ellis, 13 Hun, 655; Clark v. City of Rochester, 34 N. Y. 355; McGregor v. McGregor, 32 N. Y. 479; Rosa v. Jenkins, 31 Hun, 384.) This proceeding was in the nature of a special proceeding, and, under section 3240 of the Code of Civil Procedure, the court had discretion to award costs as in an action. (Greason v. Keteltas, 17 N. Y. 498; McKeon v. See, 51 N. Y. 300.) HAIGHT, J. The appeal book in this case is improperly entitled: In the action of Merritt v. Fowler. The order appealed from is entitled as above indicated in both actions. The order, however, pertains to the action of Fowler v. Fowler, which is the proper title. That action was for the partition of real estate in which a judgment had been entered appointing one Wilbur Larremore referee to make a sale. A sale had been made and a portion of the purchase price paid over to the referee when Merritt, the respondent, in an action brought by him against Fowler, procured an attachment and caused the same to be levied upon Fowler's interest in the hands of the referee or under his control, and to which he was entitled. The action of Merritt v. Fowler then proceeded to judgment, after which an execution was issued to the sheriff, who made a demand upon the referee to pay over the amount in his hands belonging to Fowler, or sufficient thereof to satisfy the execution. This the referee refused to do without an order of the court. Thereupon motion was made for such order, notice thereof being given to Fowler and all persons having or claiming at lien upon the funds. The usual order of reference was had. The referee made his report and the same remained on file in the clerk's office for the period of eight days; it was then confirmed and the order sought to be set aside made without further notice to the appellants. No exceptions were filed to the referee's report by either of the appellants. Some irregu larities are complained of, but we think they were properly |