Devlin agt. The Mayor. now, since the decision of the court of appeals, as the plaintiff claims, only questions of fact, and the defense to which involves a question or questions of fraud. The plaintiff's motion for a reference originally was strenuously opposed (Devlin agt. The Mayor, &c., 6 Daly, 488) upon the ground that the question of fraud was so largely involved that it was a case that should be left to a jury; but the reference was granted because the items were so numerous and so complex that it would be impossible for a jury to keep them all in their minds so as to pass upon each item intelligently. So strenuous, in fact, was the opposition to a reference, on the part of the city, that the corporation carried the question to the court of appeals, where the order directing a reference was affirmed. When the trial of the whole of the issues in a cause is thus referred, the referee or referees in the trial of it act in the place of both judge and jury (Morse agt. Morse, 10 Barb., 510; Kingsley agt. The City of Brooklyn, 1 Abb. N. C., 122, 123), and formerly the practice, at least in this city, as I happen to know, was almost universal, when the whole of the issues in a cause was thus referred to appoint three referees, and it was not until after 1846, when the court of chancery was abolished, together with the offices of masters in chancery and examiners of testimony in chancery, that the practice arose in the courts exercising equitable jurisdiction of referring causes to a single referee, as a substitute for the old masters and examiners in chancery. The Code, section 1025, gives the court discretion to appoint one or three referees. In Kingsley agt. The City of Brooklyn (1 Abb. N. C., 108) the reference was opposed by the corporation of Brooklyn on the same grounds as in this case that the matters in issue involved questions of fraud; and the cause was referred upon the same grounds as in this case; but the court was careful to provide that it should be tried before three carefully selected referees, who, in the language of the court, "would command general and unqualified respect," which was also VOL. XLIII 27 Devlin agt. The Mayor. done in The People agt. Dennison (19 Hun, 137). The fact that the single referee to whom the cause has been referred has been sworn and the case opened before him, does not present any difficulty. The testimony has not yet been taken, and the opening of the cause again by the plaintiff, after the three referees have been assembled, and the additional referees sworn, does not impose any great hardship. The provision of the order, that if it is found impossible or very difficult to assemble the three referees, and the trial of the action is thereby delayed, that either party may apply for the discharge of the additional referees, and that the trial proceed before the remaining sole referee, in no way invalidates the order. It is not very probable that it will be impossible or very difficult to get the three referees that have been appointed to assemble together for the trial of the cause, and this is a mere precautionary provision in an event that is not very likely to occur. From the knowlege that we have of this cause, the evidence in which upon a former trial has been extensively reviewed upon an appeal to the general term, as well as considered upon other motions in the cause, I am thoroughly satisfied that it is especially one of these causes which should be tried before three referees, as it will approximate more to a trial by a judge and a jury than by trying it before a single referee. The order, in my opinion, should be affirmed. Union Dime Savings Institution agt. Quinn. SUPREME COURT. THE UNION DIME SAVINGS INSTITUTION OF THE CITY OF NEW YORK agt. MARY J. QUINN and others. Mortgage foreclosure — Stipulation — Meaning of. Where an action by plaintiff to foreclose a mortgage for $20,000 upon certain premises, of which defendant was owner, was pending in April, 1878, and she interposed an answer setting up a counter-claim, and then a stipulation was entered into that the answer should be withdrawn, the suit discontinued, the mortgage reduced to $16,000, and possession to be given to plaintiff, who, out of the rents, should pay the interes*, taxes and necessary repairs, and credit the balance on the principal; such possession to continue until the principal of the mortgage should be reduced to $15,000 and all taxes paid, defendant giving a collateral bond for the $16,000 and acknowledging that the mortgage was valid and subsisting to the extent of $16,000. In this suit, brought in 1881, to foreclose the mortgage: Held, that the fair meaning of the stipulation was not that the mortgagee was to continue to hold the premises indefinitely, if within a reasonable time it was found that the premises would not produce enough after paying interest, taxes and necessary repairs, to reduce the principal to $15,000; and that after such reasonable time, and three years would be a reasonable time, the mortgage may be foreclosed. Special Term, March, 1882. Mr. Ritch, for plaintiff. Mr. Culver, for defendants. LAWRENCE, J.-On the 24th day of April, 1878, an action brought by the plaintiff against the defendants, Mary J. Quinn and others, for the purpose of foreclosing the mortgage in suit, was pending in this court. The defendant Mary J. Quinn was then the owner in fee of the mortgaged premises subject to the mortgage. On the last mentioned day a stipulation was entered into between the plaintiff and Mary J. Quinn, by which, among other things, it was provided that the answer Union Dime Savings Institution agt. Quinn. which had been interposed by the defendant Quinn should be withdrawn and the suit discontinued, without costs to either party. That the mortgage on the premises should be reduced from $20,000 to $16,000, and all interest from May 1, 1875, to be credited on said mortgage; that all rents due to May 1, 1878, should be collected by and be the property of the plaintiff; that the plaintiff should assume and pay all taxes and assessments chargeable on the property, to April 30, 1878. It was further stipulated that possession of the mortgaged premises should be given to the plaintiff, who was authorized to rent the same for the best price that could be obtained, and out of the rents the plaintiff was to pay the interest, taxes and necessary repairs, and credit the balance, if any, on the principal of said mortgage. The stipulation then provides that plaintiff's possession of said premises shall continue until the principal of said mortgage is reduced to $15,000 and all arrears of taxes and assessments have been paid. A fee of $150 was agreed to be paid to the defendants' attorney, and Mary J. Quinn agreed to execute a collateral bond for the payment of the amount remaining due on the mortgage, and John I. Quinn and Mary I. Quinn were to acknowledge that the bond and mortgage were valid and subsisting obligations upon the premises to the extent of $16,000, and that no offsets, counter-claims or defenses existed thereto. All of these latter provisions have been carried out. Under this stipulation the answer of the defendant Quinn was withdrawn, and the plaintiff entered into the possession of the mortgaged premises and has ever since continued in possession of the same. It appears from the evidence that sufficient has not been realized by the plaintiff from the rental of the property to make any reduction in the principal sum secured by the mortgage. It is insisted, on the part of the defendant, that this action cannot on that account be maintained. I was strongly inclined to that opinion upon the trial, but subsequent reflection has convinced me that the objection is not sound. It is well settled that the mortgagee in possession Union Dime Savings Institution agt. Quinn. takes the rents and profits, in the quasi character of trustee or bailiff of the mortgagor, and that they are to be applied in equity as an equitable set-off to the amount due on the mortgage debt. The law does not apply them as received to the payment of the mortgage. It depends upon the result of an accounting upon equitable principles whether any part of the rents and profits received shall be so applied (Hubbell agt. Moulson, 53 N. Y., 228). In this case the plaintiff entered into the possession of the mortgaged premises by agreement between the parties. But, after all, a careful reading of the stipulation reveals the fact, that the rights and position of the parties were in the main to be but little different from those which the law would have implied and enforced if the mortgagee had gone into possession of the premises without such an agreement, and even in hostility to the defendant (Hubbell agt. Moulson 53 N. Y., 228, 229; Thomas on Mortgages, 79, et seq., and cases cited). It is true that by the stipulation it was agreed that the mortgagee should retain possession until the mortgage debt was reduced to $15,000, and until all arrears of taxes and assessments have been paid. This would have been less than the mortgagee's right if he had obtained possession in hostility to the defendant (Hubbell agt. Moulson, supra; Thomas on Mortgages, 79, 83, and cases cited). It will be observed that by the stipulation, Mrs. Quinn and her husband acknowledged that the bond and mortgage in suit are valid and subsisting obligations upon the premises to the extent of $16,000, and that there were no offsets, counterclaims or defenses whatsoever thereto. This suit was commenced June 7, 1881, or more than three years after the stipulation was entered into. I cannot think that the fair meaning of the stipulation was that the mortgagee was to continue to hold the possession of the premises indefinitely, if within a reasonable time it was found that the premises would not produce enough, after paying interest, taxes and necessary repairs, to reduce the principal due upon the mortgage to |