Opinion
June 29, 1959
Present — Nolan, P.J., Wenzel, Beldock, Murphy and Kleinfeld, JJ.
An order entered July 13, 1956 (1) disapproved the report of a Referee in surplus money proceedings insofar as it found that the lien of the United States of America for taxes was superior to any of the mechanic's liens filed with the County Clerk, Nassau County, prior to June 5, 1953, (2) directed the County Treasurer, Nassau County, to pay to the Referee $366.25 as his fee and disbursements, and (3) directed the County Treasurer to distribute the balance of the surplus funds to six named lienors. The Special Term based its decision on the authority, among others, of Aquilino v. United States of America (140 N.Y.S.2d 355) . The United States of America appealed from so much of the order as disapproved the Referee's report, and as directed the County Treasurer to pay the balance of the surplus funds to the six named lienors. The appeal was placed on the calendar with a stipulation, signed by the attorneys for all the parties to the appeal except the Referee, agreeing to a modification of the order appealed from, subject to the approval of the court, so as to confirm the report of the Referee in its entirety and to direct the County Treasurer to pay the balance of the surplus funds remaining after payment of the Referee's fee and disbursements to the appellant. On the stipulation of the parties and on the papers on appeal, order modified (1) by striking from the first ordering paragraph everything beginning with the words "insofar as" and ending with the word "disapproved" and by substituting therefor the words "is in all respects confirmed", and (2) by striking from the second ordering paragraph everything following the words "be paid" and by substituting therefor the words "by the said County Treasurer to the United States of America." As so modified, order insofar as appealed from unanimously affirmed, without costs.