Kant v. Bergman — 97 A.D. 118

Majority

p. 118

Nils G. Kant, Appellant, v. Anna Bergman and Others, Defendants. James M. Seaman, Referee, Respondent.

Headnote

. Fees of a referee appointed to sell in a mortgage foreclosure action, where the property is bought in by the plaintiff — he is not entitled to fifty cents for receiving the judgment of sale.

Where the plaintiff in a mortgage foreclosure action bids in the premises at the sale, and the amount of his bid is applied upon the judgment without being paid to the referee, the commissions allowable to the referee to sell are, by section 3397 of the Code of Civil Procedure, limited to the sum of ten dollars.

p. 119

Subdivision 6 of section 3307 of the Code of Civil Procedure does not authorize a referee appointed to sell real property in a mortgage foreclosure action to charge fifty cents for receiving the judgment of sale.

Appeal by the plaintiff, Nils G. Kant, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 30th day of March, 1904, taxing the costs and disbursements of a referee appointed to sell real property in a foreclosure action.

A. W. Varian,, for the appellant.

R. J. Shadbolt, for the respondent.

We think that section 3297 and subdivision 6 of section 3307 of the Code of Civil Procedure do not authorize the referee to charge fifty cents for receiving the judgment of sale. Subdivision 11 of the latter section specifies services for which a fee may be charged, the same as for similar services upon the sale of real property by virtue of an execution, but itdoes not include and, therefore impliedly excludes a fee for receiving the judgment.

The referee was not entitled to more than ten dollars for commissions allowed by section 3297 of the Code of Civil Procedure, inasmuch as it appeal’s that such commissions are based upon a sum bid by a party and applied upon that party’s demand as fixed by the judgment without being paid to the referee.

The order is thus modified and, as modified, is affirmed, without costs.

All concurred.

Order modified in accordance with opinion of Jenks, J., and as modified affirmed, without costs.