As between the appellant, Mutual Tile Company, and the New York Title and Mortgage Company rights and priorities must obviously be ascertained and settled. Since its rights and interests are or may be involved in that settlement respondent should have an opportunity to be heard in the matter. The proper forum for the determination of all these equities and priorities is in this action. (McDermott v. Lawyers Mortgage Co., 232 N.Y. 336,349.)
The order should be reversed, with costs in all courts, and the motion granted, with ten dollars costs. Question No. 1 is not answered. Question No. 2 is answered in the affirmative.
POUND, Ch. J., CRANE, LEHMAN, KELLOGG, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Order reversed, etc. *Page 260