
    August Schieck, Plaintiff, v. Annie Donohue et al., Defendants.
    (Supreme Court, New York Special Term,
    July, 1904.)
    Surplus moneys.
    Where a new claim for surplus moneys is filed between the time of the application for the reference and that of the entry of the order, the claimant must, under Rule 64 of the General Rules of Practice, have notice, nunc pro 'tunc, of the application for a reference before the justice can sign the order.
    The facts are sufficiently stated in the opinion.
    J. Wilson Bryant, claimant, in person.
    Peter Cook, for plaintiff.
   Giegerich, J.

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 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 fro tunc 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.  