Caryl v. Stafford — 53 N.Y. St. Rep. 426

Majority

p. 426

Julius H. Caryl, Pl’ff, v. Francis X. Stafford, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed May 12, 1893.)

Headnote

1. Foreclosure—Referee’s fees.

A referee'appointed, to sell in foreclosure is entitled only to $50, although there may be more than one sale owing to defects in the proceedings ; but is entitled to his disbursements to whatever extent they were properly incurred, such as advertising and auctioneer’s fees.

8. Same—Infants.

Where there are infants interested in the proceeds of sale, a payment to the attorneys for the purchaser on the first sale made without an order of the court in reference thereto, should not be allowed as a disbursement.

Appeal from order overruling exceptions and confirming a referee’s report of sale under foreclosure.

J. W. Shepard, for app’lt; N. J. Waterbury, Jr., for referee, resp’t.

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 § 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

p. 427

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.

O’Brien, J., concurs.