Schermerhorn v. Prouty — 80 N.Y. 317

Majority

p. 317

William H. Schermerhorn et al., Executors, etc., Appellants, v. John S. Prouty et al.

Headnote

The act (chap. 569, Laws of 1869, as amended by chap. 192, Laws of 1874), in relation to fees of sheriffs and referees on foreclosure sales, in the city and county of New York, was not repealed by the amendment of 1876 to section 309 of the Code of Procedure, which limits the sum to be allowed for fees on such a sale. The amendment simply modified the act by fixing the maximum of fees, leaving the scale of charges, up to this limit, as fixed by said act.

(Argued February 24, 1880;

decided March 9, 1880 )

p. 318

Appeal from order of the General Term of the Supreme Court, in the first judicial department, affirming an order of Special Term, which fixed the fees of the referee for selling the premises under a decree of foreclosure herein at fifty dollars.

Henry Man, for appellants.

Chapter 569, Laws of 1869, as amended by chapter 192 of Laws of 1874, is not unconstitutional, and a referee on sales under foreclosure is only entitled to the fees allowed by it. (Richards v. Richards, Ct. App., Feb. 11, 1879; Wallbridge v. James, N. Y. Wkly. Dig., Dec. 9, 1878.)

Elliot Sanford, for respondent.

The fees of a referee to sell in foreclosure are regulated by section 309 of the Code of Procedure, as amended by chapter 431, Laws of 1876, and are, within the limit there fixed, (fifty dollars) in the discretion of the justice. (Gaskin v. Meek, 42 N. Y., 186 ; Philips v. Walker, 4 Hun, 645 ; Thomas on Mortgages, 326.) The allowance of fifty dollars in each case was a proper exercise of discretion. (People ex rel. Day v. Bergen, 53 N. Y., 404 ; Dinkelspiel v. Styles, Donahue, J.)

The act chapter 192 qf the Laws of 1874, amending chapter 569 of the Laws of 1869 provides that sales of real estate in the city and county of Hew York, under a decree or judgment of any court, may be made by the sheriff or by a referee appointed for that purpose, and declares that when any sale is made by any officer other than the sheriff “no greater sum shall be charged or allowed as fees ” than as prescribed in section two of the act amended. The amendment of the act of 1869 by the act of 1874 consisted mainly in removing the limitation of the original act confining the authority to make sales of real estate in the city and county of Hew York, under a judgment or decree, to the sheriff exclusively. If the act of 1874 is still in force, it is plain that the fees of referees on sales on foreclosure, in

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the city and county of Hew York, are regulated by the act of 1869, and are the same as are by that act allowed to the sheriff for the same service. The second section of the act declares that on foreclosure sales the sheriff shall be entitled to certain specified fees for specific services, besides disbursements. It will be seen, by reference to that section, that in cases where the sale is not adjourned, and but one deed is required to be given, and there are no surplus moneys, the aegresate fees to which a sheriff or referee is entitled are thirty dollars. In case of adjournment^ and where the sale embraces several parcels of land sold to different purchasers, and there are surplus moneys arising on the sale, additional fees are given at the rate specified in the section for the additional service in making adjournments, drawing additional deeds, and paying over surplus moneys.

It is claimed that the act of 1869 was repealed by the amendment to section 309 of the Code of Procedure, passed May 26, 1876, which, after providing for an allowance in foreclosure actions, proceeds as follows : “ Hof shall a greater sum than fifty dollars be charged by or allowed to any sheriff, referee, or other officer, for his fees, percentage or services for any sale under a decree or judgment of foreclosure.” The claim is'that under this statute it is in the discretion of the court, in cases of foreclosure sales in the city of Hew York, to allow any sum to the sheriff or referee making the sale not exceeding the sum of fifty dollars. This claim cannot be sustained. The statute of 1869 was a local act, and the amendment to the Code in 1876 was a general law, not inconsistent with the act of 1869, except so far as it modified that act in the respect hereafter mentioned.

It is manifest that there may be cases where the fees of the sheriff or referee on foreclosure sales in the city and county of Hew York, will under the act of 1869, exceed fifty dollars, as jvhere a foreclosure action embraces distinct premises or parcels of land, which are separately sold under one judgment to different purchasers, requiring the sheriff or referee to execute a separate conveyance of each parcel sold. In that

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case the officer, under the act of 1869, would be entitled to charge five dollars for drawing each deed. The only effect of the act of 1876 upon the act of 1869 is to fix a maximum of fees, to which the officer in any case is -entitled; but it does not, by any necessary or fair construction, abrogate the scale of charges fixed by the act of 1869. That act still regulates the fees of the sheriff or referee on foreclosure sales in the city and comity of New York, subject only to the limitation in the act of 1876 — that in no case shall they exceed fifty dollars."

The order of the General and Special Terms should be reversed, and the case remitted to the Special Term for taxation of the fees of the referee, in accordance with the fee-bill in the act of 1869, with costs of one appeal only.

All concur.

Ordered accordingly.