In re Orient Mutual Insurance — 50 N.Y. St. Rep. 460

Majority

p. 460

In the Matter of The Orient Mutual Insurance Co.

(Supreme Court, General Term, First Department,

Filed December 16, 1892.)

Headnote

Receivers—Compensation.

The court has no power to allow a receiver extra compensation in addition to the five per cent, on the sums passing through his hands, allowed by statute.

Appeal from an order fixing the compensation of the receiver of the Orient Mutual Insurance Company and granting him an additional allowance.

S. W. Bosendale, atty. gen. (William J. Lardner, dcp. atty. gen., of counsel), for app’lt;

E. Wells, for resp’t.

By § 3320 of the Code, a receiver, except as otherwise provided, is entitled, in addition to his lawful expenses, to such commission, not exceeding five per cent, upon the sums received and disbursed by him as the court by which or the judge by whom he is appointed allows; and by chapter 378 of the Laws of 1883, it was provided that receivers should be allowed to receive as compensation for their services as such receivers five per cent for the first $100,000 actually received and disbursed, and 2% per cent for all sums received and paid out in excess. It seems to be certain that either one or the other of these statutes covers the question of compensation of receivers, and that, where such compensation is fixed by statute, the court has no power to exceed the amount therein allowed under the guise of extra compensation. By § 3320 the receiver had no claim whatever, as a matter of right, to any fixed sum as a compensation, but was limited to five per cent upon the sums received and disbursed by him. By § 2, chap. 378, of the Laws of 1883, the receiver was entitled to claim the commissions therein mentioned. But simply because no prohibition was contained in the section it did not give the court power to make such allowance as it might see fit. The very language of the section shows that the receiver is to have five per cent on the first $100;000 and 2^- per cent on the excess; the legislature clearly intending a limitation

p. 461

in the amount which might be paid to the receiver. This construction has been placed upon this act by this court in Matter of Security Life Ins. Co., 31 Hun, 36 ; affirmed, 95 N. Y., 654 . The learned court below seems to have followed a previous decision of the court upon this question, which, however, was clearly erroneous. The order • appealed from should be modified by deducting therefrom the excess allowed the receiver, with costs of this appeal.

O’Brien and Barrett, JJ., concur.