
    Maximillian Toch, as Administrator, etc., of Moses Toch, Plaintiff, v. Henry M. Toch, as Executor, etc., of Bernard Toch, Deceased, Appellant; Bella B. Mayer, Respondent.
    
      Moneys in court— application for a reference to ascertain the rights thereto—effect of the denial of a similar motion made by another claimant.
    
    Where surplus moneys, resulting from the sale of real estate, sold to satisfy certain liens thereon, have been paid into court, the court, on the application of a party claiming to he entitled to a portion of them, may properly appoint a referee to ascertain the respective amounts due to the respective claimants of the fund.
    The fact that a motion to the same effect, made on behalf of another claimant, was denied on the ground that the moving party had already been served with the summons in an action brought to determine the rights of the parties to such fund, is no reason for denying the motion of another claimant who has not been served with the summons in such action.
    Appeal by the defendant, Henry M. Toch, as executor, etc., of Bernard Toch, deceased, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of June, 1896, as appoints a referee to ascertain and report the amount due to Bella B. Mayer, or to any other person, which is a lien upon certain surplus moneys deposited with the chamberlain of the city of Hew York under the provisions of a judgment of the Supreme Court directing a sale of certain real estate and directing the referee to report the priorities of the several liens thereon.
    
      Louis Wertheimer, for the appellant.
    
      Charles G. F. Wahle, for the respondent.
   Per Curiam:

It appears on this motion that, in pursuance of the judgment entered in this action, certain real estate was sold, and that from the proceeds of such sale the sum of $8,000 and interest was paid to the plaintiff, and the surplus was deposited with the chamberlain of the city of Hew York to the credit of this action, to abide the further order of the court in the premises. In pursuance of such judgment the sum of $33,206.07, the surplus of such sale, was paid to the chamberlain of the city of Hew Pork, and is now in his possession under such judgment. The moving party, the respondent here, claims to have been one oE the owners of the fee of the premises sold, and claims to be entitled to a portion of such surplus money. The court below ordered a reference to ascertain and report the amount due to the said Bella B. Mayer, or to any other person, which is a lien upon such surplus money, and to ascertain the priorities of the several liens thereon.

We think this order should be affirmed. The money was in court, being the proceeds of certain real estate which had been sold under a judgment of the court to satisfy certain liens thereon. The court having thus the possession and control of the money, which stood in place of the property sold, any one having a lien upon, or being entitled to a portion o,f such moneys, was entitled to apply to the court to have the amount of the respective interests of the parties ascertained and the money paid to those entitled to it. Ho reason appears why the court could not exercise such jurisdiction at the foot of the judgment, and it is quite apparent that such a method would be much more economical ahd expeditious than by the more cumbersome method of an action. The appellant’s rights can be as effectually secured before the referee as by the action that he has commenced for the distribution of this fund.

It is not necessary to determine whether rule 64 of the General Buies of Practice applies to such a proceeding. Assuming that it does, it is not claimed but that the provisions of that rule have been observed in this proceeding. The fact that a motion, made by one of the other parties to the action, who claimed an interest in the fund, was denied, is not controlling upon the respondent. That application seems to have been denied because the moving party had been served with a summons in an action brought to determine the interests of the respective parties in this fund; but as the summons in that action had not been served upon the respondent here, and as there was no way by which this respondent could get into that action, she certainly was not bound to wait until the plaintiff there should see fit to serve her and so give her an opportunity to assert her rights.

The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements to be paid by the appellant to the respondent.

Present — Barrett, Rumsey, Patterson and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements to be paid by appellant to respondent.  