Majority
p. 11Annie M. Duffy, Plaintiff, v. Alois C. Muller et al., Defendants. (Supreme Court, New York Special Term, November, 1906.)
Headnote
Reference — Compensation of referees — Statutory fees — On judicial sales — Partition.The fees of a referee appointed in a judgment of partition, when the real property is sold, are to be computed upon the price the property brings.
Application by a referee, appointed in an interlocutory judgment in partition to sell the premises therein described, for the instructions of the court as to the amount of his fees.
William J. A. McKim, for Adam Wiener, referee.
Roswell S. Nichols, for defendants.
The referee is entitled to a sale fee on the amount bid and to commissions on the amount in his hands for distribution. Section 3297 of the Code provides: “ The fees of a referee appointed to sell real property pursuant to a judgment ip. an action, are the same as those al
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lowed to the sheriff, and he is allowed the same disbursements as the sheriff.” The provisions of subdivision 7 of section 3307 limit the fee basis in the case of a sheriff to the amount collected, in other words, the amount for which he is accountable. The premises in this action were sold by the referee at $18,100, free and clear; upon that sum the respective shares of the parties were measured, and within the meaning of section 3307 that is the amount collected and for which the referee is accountable. Upon that amount, .therefore, should his sale fee be computed. This construction of section 3307 is emphasized by the provisions of section 3297, which create a distinction between the sale fee and the commissions on distribution, limiting only the latter to the amount actually distributed. The referee should be allowed $30 for-applying the respective shares of the three parties to whom the bid was assigned.
Ordered accordingly.