Caryl v. Stafford — 23 N.Y.S. 534

Majority

p. 534

(60 Hun, 318.)

CARYL v. STAFFORD et al.

(Supreme Court, General Term, First Department.

May 12, 1893.)

Headnote

1. Mortgages—Foreclosure Sale—Compensation op Repebee.

Code Civil Proc. § 3297, provides that the referee’s compensation, including commissions, for making a sale under a judgment in an action to foreclose a mortgage, shall not exceed $50. Helé, that where, owing to defects in the proceedings, there are three sales, he is entitled to only $50,—not to that sum for each sale.

2. Same—Disbursements^by Reperbe.

He was properly allowed disbursements made in paying the auctioneer’s fee, and for advertising.

8. Same—Rights op Inpants.

There being infants interested in the proceeds of a foreclosure sale, ■ the payment of the fees of the purchaser’s attorney by the referee making the sale is unauthorized, no order of the court having been made in reference thereto.

4. Costs on Appeal.

On appeal from an order overruling exceptions to, and confirming, the report of a referee who made a sale under a "mortgage foreclosure, a modification of the order, in so far as it allowed the referee certain disbursements and compensation, will be made without costs, where the papers have been put together in such a way that it is impossible to tell to which order they apply, and some are included which should not have been embraced in the record.

Appeal from special term, New York county.

Action by Julius H. Oaryl against Francis X. Stafford and others to foreclose a mortgage. There was a judgment of foreclosure and sale of the mortgaged premises. From an order overruling. ex

p. 535

ceptions to, and confirming, the referee’s report, defendant Stafford appeals; the referee, Nelson J. Waterbury, Jr., appearing personally as respondent. Modified.

Argued before VAN BRUNT, P. J., and O’BRIEN, J.

J. W. Shepard, for appellant.

N. J. Waterbury, Jr., for respondent.

It appears from the papers that the respondent was appointed referee to sell certain premises under foreclosure, and that, owing to defects in the proceedings, there were three sales by the referee; and the referee was allowed to deduct from the proceeds of the last sale $50 for his time and services upon each sale. We cannot find any warrant for such allowance. By section 3297 of the Code (the section which fixes the compensation of the referee) it is provided that the referee’s compensation, including commissions, cannot, where the sale is under a judgment in an action to foreclose a mortgage, exceed $50. This seems to us to limit the fees which a referee may charge for the sale of property, as his compensation, in any one action, to $50.

For his disbursements he would be entitled to be allowed, to whatever extent they were properly incurred; and there seems to have been no error in the allowance of the expenses for advertising, or the payment of the auctioneer’s fees

The payment by the referee to the attorneys for the purchaser upon the first sale of $25 seems to be entirely unauthorized; there being no order of the court in reference thereto, which was absolutely necessary, in view of the fact that there were infants interested in the proceeds of sale. In passing, it may be said that even the verbal consent claimed to have been given by the defendant’s attorney, now deceased, would seem hardly sufficient, if there were infants interested, to justify the court in allowing such a disbursement.

The order should be modified by sustaining the objections as to the $50 for the referee’s compensation on the first sale, and as to the $50 for his compensation on the second sale, and as to the $25 paid to the counsel for the purchaser upon the first sale. This modification of the order would, under ordinary circumstances, have been made upon the payment of costs and disbursements of the appeal by the respondent; but the papers have been put together in such a way that it is impossible to tell to which order they apply, and some are included which have not the slightest pretense of right to be embraced within the record.

The order will therefore be modified, without costs.