Chisholm v. Hopson — 182 A.D. 856

Majority

p. 856

George E. Chisholm and Others, as Trustees for Mary F. Chisholm, under the Last Will and Testament of Mary A. Chisholm, Deceased, Plaintiffs, v. John P. Hopson and Others, Defendants, Impleaded with Caroline Maync, Individually and as Executrix, etc., of Charles Maync, Deceased, Appellant. Emanuel S. Cahn, Referee, Respondent.

First Department,

April 19, 1918.

Headnote

Foreclosure — sale realized in excess of $10,000 — when referee only entitled to $50 — Code Civil Procedure, section 3297.

Where a sale on foreclosure realizes more than $10,000, but it does not appear that any unusual services were rendered by the referee, or that he was put to unusual trouble, the fifty-dollar fee prescribed by section 3297 of the Code of Civil Procedure is ample compensation, and an order granting him additional compensation will be reversed.

Appeal by the defendant, Caroline Maync, individually and as executrix, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of February, 1918, granting additional compensation to the referee in a foreclosure action.

p. 857

Vidor Nichthauser of counsel [Jerome H. Koehler with him on the brief; Pratt, Koehler & Boyle, attorneys], for the appellant.

Emanuel S. Cahn, respondent, in person.

This is an appeal from an order granting a referee on a sale in a foreclosure action $50 additional compensation under the discretionary provision of section 3297 of the' Code, the property having sold for $19,000. There is absolutely no showing whatever of any unusual services rendered by the referee. The sale was advertised for November 14, 1917, and at the request of plaintiffs’ attorneys the referee caused the sale to be postponed until November twenty-eighth, and arranged for the usual publication of the notice of postponement. On November twenty-eighth, at the request of plaintiffs’ attorneys, the sale was adjourned to December twelfth, at which time the property was sold. The closing of title was appointed for January 14, 1918, but was postponed at the request of the purchaser’s attorneys until January twenty-third when it was effected. The property was bought in to protect a second mortgage. The surplus in the hands of the referee is $1,227.23, so that it appears that the holder of the second mortgage is a heavy loser. The mere fact that the sale realized more than $10,000 is not sufficient to warrant additional compensation. It is permitted in that event, but should only be granted where the circumstances show that the referee performed unusual services or was put to unusual trouble. The tendency should be to keep these charges down instead of adding to the burdensome expense of foreclosure, much of which is wholly unnecessary. The original fifty dollars fee was ample compensation for the service rendered.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied.

Clarke, P. J., Laughlin, Dowling and Smith, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied.