
    James A. Van Voast, as Sole Executor, etc., of Peter Vedder, Deceased, Plaintiff, v. Thomas F. Cushing and Others, Defendants; Catherine A. Furman, as Sole Executrix, etc., of Robert Furman, Deceased, Respondent. Garrett S. Veeder, Claimant, Appellant.
    
      Surplus money proceedings—notice of application to confirm the report ofthereferee therein—it must he giren to all- claimants, although no exceptions to the report hare been filed.
    
    Under rule 64 of the General Rules of Practice it is necessary, on an application to confirm the report of a referee in surplus money proceedings, to give notice of such application to every party who has appeared in the foreclosure action or who has filed with the clerk notice of a cl'aim to such surplus money, although the report of the referee has been filed and notice of its making and filing has been given, and no exceptions have been filed thereto.
    Rule 30 of the-General Rules of Practice is not, so far as it conflicts' with rule 64, applicable in this respect to such a proceeding.
    Appeal by the claimant, Garrett S. Veeder, from an order of the Supreme. Court, made at the Saratoga Special Term and entered in. the office of the clei'k of the county of Schenectady on the 28th day of February, 1898, vacating and setting aside an order confirming the report of a referee appointed in surplus money proceedings and directing the distribution thereof; compelling the return of said surplus moneys into court, and allowing the defendant Catherine A. Furman, as sole executrix,' etc., of Robert Furman, deceased, to file exceptions to the report of the referee; also, from an order made at the Schenectady Special Term and entered in said clerk’s office on the 8tli day of March, 1898, denying said claimant’s motion for an order for the reargument of a motion for a modification of said order. ■
    The above-entitled action was one for the foreclosure of a mortgage. After the sale and payment of the mortgage and costs there was a surplus to the amount of about $1,363.07, for which there were several claimants. An order óf reférence was made to ascertain and report the amount of such surplus due to the several claimants and to ascertain the priorities of' the several liens on such surplus.
    Upon such hearing, Gilbert Brougham, Catherine A. Furman, Thomas F. Cushing, Joanna G. Cushing and Garrett S. Veeder appeared by attorneys as claimants to such surplus money. Catherine A. Furman was a defendant in the action for foreclosure and had appeared therein.
    The referee made his report, which was filed in the office of the county clerk of Schenectady county on the ,29th day of January, 1898, and the attorney for Gilbert Brougham, who took up the report, gave notice of the making and filing of such report to the attorneys of the other claimants of such surplus money. No exceptions were filed to such report, and on the 14th day of February, 1898, the attorney for Gilbert Brougham, without giving any notice to any of the claimants or parties who had appeared in such action, took an order confirming such report and for a distribution of the surplus money, as provided for in such report.
    Such order was entered upon the same day, and the amounts found due by such referee to the several claimants, and ordered to be paid to them by such order of confirmation, were paid to the attorneys of said several claimants, with the exception of Catherine A. Furman.
    On the 26th day of ■ February, 1898, u})on the affidavit of the attorney for Catherine A. Furman and the affidavits of divers other persons, showing, among other things, that such attorney believed, and was also advised by counsel whom he had consulted, that it was-unnecessary to file exceptions to such .report; that he expected to receive notice of the motion for confirmation of such report, and that he intended in good faith to oppose the confirmation thereof, believing and having advised his client that she was entitled to the whole of such surplus money. The Special Term made an order vacating and setting aside the order confirming the report of said referee, and ordering and directing the payment into court of the various sums of money that had been paid to and received by the attorneys for such various claimants, and allowing Catherine A. Furman to file exceptions to the report, of said referee, with the same force and effect "as if such exceptions had been filed within eight days after January 23, 1898.
    Thereafter the appellant made a motion at a Special Term for a reargument of the motion setting aside the order confirming the report of the referee, or, if such reargument should not be permitted, for a modification of such order; which motion was denied. And from the order vacating and setting aside the order of February fourteenth, confirming the referee’s report, and from the order denying.the motion for a reargument, or for a modification of the order of February twenty-sixth, this appeal is taken.
    
      Edwin G. Angle, for the appellant.
    
      Daniel Naylon, Jr., and Eobert J. Landon, for the respondent.
   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.  