Van Voast v. Cushing , 52 N.Y.S. 934 ( 1898 )

Herrick, J.:

The Special Term had lower and authority to vacate and set aside the order confirming the referee’s report and permit the moving party to come in to be heard thereon, and also had power to grant an order permitting her to file exceptions to the referee’s report, nunc pro tune. (Code Civ. Proc. §§ 724, 763; Vanderbilt v. Schreyer, 81 N. Y. 646; Ladd v. Stevenson, 112 id. 325.)

The practice in relation to determining who are entitled to surplus money arising from foreclosure proceedings is regulated by rule 64 of the General Eules of Practice of the Supreme Court.

That rule is intended to provide a summary and.inexpensive . ■method of determining the rights of conflicting claimants to surplus money, and applies to ouly one class of proceedings.

Rule 30 is a general rule, with the exceptions of references for the trial of issues in an action, or computing the amounts due in foreclosure cases. And where the provisions of a rule general in its terms, and those applying to a special kind of proceedings come into conflict, the latter must prevail as to those proceedings which it "is intended especially to regulate and govern. Under rule "30, if no exceptions are filed to the referee’s report, no notice need be given, while under rule 64 it is especially provided that every party who has appeared in the cause, or who shall have filed notice of a claim to such surplus money with the clerk, shall be entitled to notice to attend upon such reference, and to'all legal proceedings relative to such surplus ; .that I construe to mean notice of every application that is necessary to be made to the court in relation to. the distribution of the surplus.

The respondent was a party to the action, and had appeared therein, and was also a claimant, and was, therefore, entitled to notice of the application to the court for a confirmation of the referee’s report and for the distribution of the surplus money; and not having received such notice, it was eminently proper that the order confirming the report should be vacated in order that she might be "heard in reference thereto.

It is claimed that the order directing the payment into court of the moneys received by the several attorneys in the order of distribution will work a hardship to the attorney who paid the reference fees in taking up the report. It is to be assumed that the Special Term will provide for the proper'adjustment of that in the final order in these proceedings, and there is no necessity for a modification of the order in that respect now.

I can see no abuse of discretion by the Special Term in making the orders appealed from, and they should be affirmed, with ten dollars costs and disbursements of this appeal.

All concurred, except Landon, J., not voting.

Order affirmed, with ten dollars costs and disbursements.