Majority
p. 36(44 Misc. Rep. 425.) SCHIECK v. DONOHUE et al. (Supreme Court, Special Term, New York County. July, 1904.)
Headnote
1. Reference—Notice of Claim.Under rule 64 of the Supreme Court, providing that all who file a notice of claim previous to the entry of the order of reference shall be entitled to notice of the application for reference, such notice may be given nunc pro tune where the claim is filed intervening the application and the order.
Action by August Schieck against Annie Donohue and others. Motion for permission to file claim for surplus moneys.
Granted.
See 87 N. Y. Supp. 206 .
J. Wilson Bryant, for the motion.
Peter Cook, opposed.
It appearing that, since the motion for a reference to ascertain and report as to who is entitled to the surplus moneys was made and granted, a new claim has been filed, the proposed order cannot be signed at present. Rule 64 provides that all who file
p. 37
a notice of claim previous to the entry of the order of reference shall be entitled to notice of the application for the reference. It is obvious, however, that such notice may be given nunc pro tune when, as here, the claim is filed intervening the application and the order. Upon proof of the giving of such notice and of notice of settlement of the order, and in default of any objection from the new claimant, I will sign the order submitted.
Ordered accordingly.