Humbert v. McKay

8 Paige Ch. 651 | New York Court of Chancery | 1841

The Chancellor.

The rule of this court has been substantially complied with in this case, except as to the production before the master of the proper evidence to show that no other claimant was entitled to notice of the hearing before him on the reference. The report states that it does not appear that any other person has made or filed any claim to the surplus moneys ; from which I infer that no evidence on that subject was produced before the master. But before the master proceeded in the reference, he should have required from the claimant affirmative evidence, by a certificate from the register with whom the report of the sale was filed and the surplus deposited, that there was no notice of claim to such surplus annexed to the master’s report of the sale, and that no other notice of claim thereto had been filed in his office previous to the entry of the order for a reference ; or if claims have been filed stating the names of the claimants, and of their solicitors, if any, and their respective places of residence. Every such claimant, as well as every defendant who has entered his appearance in the cause, is entitled to a summons to attend the master on the reference 5 to be served in the manner prescribed in the rule. The master, therefore, should ascertain, by the proper certificate and other evidence, that all proper parties and claimants have been duly notified or summoned to attend on the reference, before he proceeds to make an ex parte report upon the order of reference. And the fact that such evidence was produced before him, should be stated in his report.

Nor does the neglect of an incumbrancer to file his claim, before the entry of the order of reference, absolutely preclude him from making a claim to the surplus moneys on the reference ; although he may by such neglect lose his right to a summons to appear before the master. For if he comes in before the master pending the reference, and files a claim with him, duly verified, he has a right to be heard upon such claim ; upon such equitable terms, as to costs or otherwise, as the master shall think proper to impose upon him, if any of the other parties to the reference have been subjected to extra costs or otherwise prejudiced by his delay in filing his claim.

The master was right in this case in requiring the claimant to swear to the justice of his claim, and the amount actually due upon his judgment. This is a case coming within the spirit of the 105th rule, authorizing the master to examine a creditor coming in to claim before him, on oath. The principle of the decision of this court in Morris v. Mowatt and others, (4 Paige’s Rep. 142,) is therefore applicable to such cases ; and the practice stated by the court in that case should be adopted by the master upon references of that kind.

Where it appears from the master’s report that the proceedings before him have been entirely ex parte, so that no person has any right to except to the report, the expense and delay of a previous order of course to confirm the report nisi appears to be wholly unnecessary. It will not, therefore, be required in such cases, for the future; but the special order of the court for the confirmation of* the report, and for the payment of the surplus moneys to the parties entitled thereto, in conformity with such report, may be entered together. In all other cases, however, the order nisi to confirm the report must be entered ; so as to give to parties who have appeared before the master an opportunity to except. And a certificate, that such order has become absolute, must be produced to the court when the application is made for the order to pay over such surplus moneys, according to the rights of the parties as settled by the report of the master. In this, as in all other cases where an application is made to the court for the payment of moneys which are supposed to be in the hands or under the control of its officers, the party applying for payment must produce the certificate of the register, assistant register, or clerk, with whom the money was deposited, showing the amount of the fund, and the way in which it has been invested, together with the claims, if any, which have been made thereon ; so that the proper order may be made to enable the applicant to withdraw the money from the court.

In the present case an order may be entered for the payment of the whole of the surplus money to Mr. Benton, to be applied in part payment of the balance due on his judgment, and the taxable costs of the reference, &c. upon filing a certificate of the register that no claim to such surplus was annexed to the master’s report of sale, and that no other claim but the one upon which the order of reference was founded had been filed in his office previous to the entering of that order. But if any such claim had been filed it must be referred back to the master to review his report as to the surplus money, after summoning such other claimants before him upon the reference.