Although there had previously been some doubt as to the powers of referees in proceedings to distribute surplus moneys, the decision in Bergen agt. Snedeker et dl (21 Alby. L. J., 54) has settled the matter. It is held, and wisely held in that case, that a question of fraud may be investigated before the refereeand it follows, by analogy, that every question may be examined tending to show the equities of the claimants. In the present case there is no doubt that the clause in question was inserted by accident and mistake. In an action for the purpose the mortgage would be reformed. There is no need of such an action to determine the rights as to these surplus moneys. They can be determined as well in the present proceeding. If the mortgage could be reformed as between mortgagor and mortgagee, then the liens of subsequent creditors would not prevent the reformation. Judgment, creditors have no better rights than the judgment debtor in such respects, and, therefore, these judgment creditors are not entitled to resist the equity, which, in this case, appears in favor of the mortgagee.
The order of special term must be reversed and the exceptions to the referee’s report overruled, and an order entered *358according to his report, with ten dollars costs and printing disbursements to the appellant against the respondents.
Decision of general term:
“ Order reversed, with ten dollars costs and printing disbursements, and exceptions to referee’s report overruled, with ten dollars costs. Report of referee confirmed.”