Tne action was brought and prosecuted for the foreclosure of a mortgage executed by Heinrich Kroll, in his lifetime, upon premises situated in the city of New York. It was commenced in September, 1879, and resulted in a judgment in the following month of *330November, for the sale of the mortgaged property. The sale took place in January, 1880, at which the plaintiff became the purchaser. He held the title acquired by the deed until the 18th of August, 1882, when he sold and conveyed the premises to Augustus C. Bechstein. In the latter part of the fall of the same year one of the infant defendants presented to the court a petition, in which the others afterwards joined, for an order vacating an order permitting substituted service of the summons and objecting to the regularity or authority exercised in making the order. The plaintiff in the action was not made a party to this proceeding, but it was brought against Beckstein the purchaser. A reference was made of the subject-matter of the application to a referee who heard the testimony and reported against it, and that report was sanctioned by the court. After that had taken place the plaintiff voluntarily obtained and entered, an order vacating and setting aside the sale under the judgment in the action, the judgment itself and the deed by which the property had been conveyed by the referee in pursuance of the sale to the plaintiff. But this was declared by the order to be without prejudice to all proceedings had prior to the application for judgment, as against all of the defendants who were then adults, and with leave to the plaintiff or his grantee, to take such further proceedings as he might be advised against the infant defendants. By virtue of this authority another service of the summons was made upon the infant defendants. They were properly brought into the action by such service, even if they had not been before, and the proceedings against them afterwards were entirely regular. They have been objected to in some respects as informal, but the informalities, conceding them to exist, in no manner impaired or affected the judgment in the action. If advantage had been intended to be taken of the alleged informalities, it should have been by way of motion, and cannot now be urged in support of either of these appeals. Under this order the defendants answered the complaint, and by their answers presented issues which were tried and disposed of at the Special Term.
One of the points urged in support of the appeal is that Bechstein, who took the conveyance of the property from the plaintiff, should have been made a party to the action. But as the service of the summons upon the two adult defendants was clearly regular, *331and the substituted service upon the infant defendants was not vacated or set aside by the order, but that had been confirmed by the action of the court, it is to be assumed that the action was pending. against all the defendants at the time when this order was entered, and that the additional service personally made upon the infants of the summons was to remove any possible ground of alleged irregularity in the service previously made. It did not supersede that service, but at the time when the summons was last served the action was still pending, and even though Bechstein, by the conveyance to him, had secured a transfer of the mortgage, the action could still afterwards be regularly prosecuted and continued in the name of the original plaintiff, under the authority of section 756 of the Code of Civil Procedure. This has provided, in case of a transfer of interest, that the action may be continued by the original party, unless the court directs the person to whom the interest is transferred to be substituted in the action or joined with the original party, as the case may require. N o order of this description was obtained, and the action could, therefore, regularly be maintained in the name of the plaintiff. As the judment in the action, the sale made under it, and the referee’s deed, had been wholly vacated, Bechstein by no possibility could have acquired more under the conveyance to him from the plaintiff than an interest in the mortgage, which, under this section, might be regularly prosecuted to a judgment, decree and sale, notwithstanding the existence of that interest.
It did appear that the widow of the mortgagor, with her family, remained in the possession of the mortgaged property after the sale and conveyance to the plaintiff, and up to and subsequent to the time when the deed was made to Bechstein. During that period of time the plaintiff received, by monthly payments from the widow, the sum of $1,123.75, over and above commissions paid for the collection of the amount. By the judgment, which was finally recovered upon the trial in the plaintiff’s favor, interest was allowed to him upon the mortgage to the 4th of June, 1884, of which date the judgment was finally entered, although in fact the roll was not filed until the twenty-first of the following month of July. The amount so collected by the plaintiff from the widow was not deducted from the mortgage debt and interest, and in the omission to malte that deduction there seems to have been a clear error in *332the disposition of the case. As the first judgment was vacated, and tlie plaintiff’s title to the premises under the sale was annulled, this was so much money received by him, as mortgagee, in the way of rents, or profits, of the premises; and he clearly could not claim to hold this sum of money received in that manner and at the same time recover interest upon the mortgage debt. The latter was all that he was entitled to in the action, and this sum of $1,123.75 should have been deducted as so much money received by him upon the mortgage. Evidence was given of the payment of taxes by the plaintiff, but as no specific amount was mentioned or proven no foundation was presented for deducting from this sum of money the sums which may have been paid by the plaintiff on account of taxes. The error in omitting to make the deduction of this money from the mortgage debt requires that the judgment shall be reversed and a new trial qrdered, with costs to abide the event, unless the plaintiff shall, in twenty days after notice of the decision, stipulate to deduct this sum, together with such an amount of interest as may be included in the judgment on the like amount, from the time when the deduction should have been made. If such stipulation shall be given, then the judgment as so modified should be affirmed, without costs of the appeal to either party.
Upon the adjustment of the costs in the action the plaintiff was allowed the referee’s fees on the reference of the application, made to vacate the judgment and set aside the substituted service of the summons, amounting to the sum of $210. The plaintiff was not a party to that proceeding. It was brought against Bechstein, the purchaser, and whatever costs or disbursements were recoverable in that proceeding were in his favor. These fees, as the facts were shown, were neither incurred nor paid by the plaintiff. He was under no obligation or liability for their payment, and should not have been permitted to include them in the bill of costs adjusted in the action. The fees allowed for the attendance of the two witnesses, although they were not sworn, may not be specially objectionable, inasmuch as the omission to swear them may be inferred, from the course of the trial, to have arisen from the fact that oral evidence was not produced on the part of the defendants to maintain either of their defenses. The fees allowed for the search do not seem to have been improper. They may very well *333liave been incurred, as they probably were, in obtaining the information necessary to prosecute the action for the foreclosure of the mortgage. The referee’s fees should not have, been allowed, but the right of the plaintiff to the other disbursements, to which objections have been made, does not appear to be seriously questionable. But to correct the order and the adjustment it should be reversed, with ten dollars costs, besides disbursements to the appellants, unless within the period already mentioned the plaintiff shall stipulate to deduct these fees from the adjusted bill of costs, and if such stipulation be served then the order, as so modified, should be affirmed, without costs of the appeal to either party.