New-York Life Insurance & Trust Co. v. Davis — 10 Paige Ch. 507

Majority

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The New-York Life Insurance and Trust Company vs. Davis and others.

Headnote

In a foreclosure suit the register or clerk is required to charge and receive from the solicitor of the complainant, for the benefit of the state, the fees for services which are performed before it is ascertained whether a defence is to be made in such suit, at the rates which are prescribed by the fee bill in other cases. But for services performed after the bill has been taken as confessed, or after the defendant has put in an answer which sets up no defence, no other fees are to be received, or charged, than such'as are prescribed in the act of May, 1840, to reduce the expense of foreclosing mortgages in the court of chancery.

The register or clerk is not entitled to charge a fee for entering the bill, or for entering a memorandum of any order or decree in the register or minutes of causes, or for filing the draft of an order or decree which is to be entered by him.

The defendant in a suit, prima facie, is not chargeable with the expense of an amendment to the complainant’s bill. And to entitle the complainant to charge it against the defendant, upon taxation, it should be shown to the satisfaction of the taxing officer that the necessity of the amendment did not arise from the fault or negligence of the complainant’s solicitor.

Where the solicitor is entitled to a gross sum for his costs, in a foreclosure suit, in addition to his disbursements, he is not entitled to charge the expense of serving subpoenas as a disbursement

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1844. January 16.

Wherever the solicitor is allowed, by law, a specified sum for the performance of any service in a cause, he cannot be allowed any thing as a disbursement for such service, although he employs and pays some other person an extra compensation for its performance.

In mortgage cases, where there is no defence, the'complainant’s solicitor is not entitled to charge, as disbursements, for serving subpoenas, notices, &c. in addition to the specified allowance to him, for all his services in the suit, as fixed by the act of May, 1841. N or is he entitled to charge for disbursements paid to counsel in the suit.

Where papers are sent by express, instead of being transmitted by mail, the amount actually paid by the solicitor upon such transmission, but not exceeding the ordinary postage thereon, may be taxed as a disbursement in the suit.

The master is only entitled to twelve cents for signing a summons, and he is not entitled to an attendance fee thereon. Nor is the master entitled to charge for the draft or copy of the underwriting of a summons, upon a reference.

Upon an ex parte reference to compute the amount due upon the bond and mortgage in a foreclosure suit, the master is not entitled to a fee for attending and adjourning the reference, where it is not necessary to take testimony upon such reference. Nor is he entitled to an attendance fee in such a case, in addition to the specific allowance of one dollar for taking an account of the amount due upon the bond and mortgage.

But where any of the defendants have appeared in the suit, so as to entitle them to a summons to attend upon the reference, or where the master is directed to take proofs of the facts stated in the bill, or as to the situation of the mortgaged premises and the necessity of selling in parcels, the master is entitled to an attendance fee.

Where any of the defendants attend before a master upon a reference, so as to entitle them to a summons to attend the settlement of the draft of the report, and a further time is assigned by the master to settle the draft, the master' is entitled to an attendance fee upon the settlement of such draft of the report, of one dollar if he settles it ex parte, and three dollars if the defendants appear and litigate the settlement.

It seems that the court may dispense with the service of an order nisi to appoint a guardian ad litem for an infant defendant, and may make an absolute order for such appointment, where a notice is also served at the time of the service of the subpoena upon the infant, that an application for such an order will be made to the court, in case the infant or his friends shall neglect to apply and have a guardian ad litem appointed within twenty days after the time for his appearance, as specified in the subpoena.

This was an application by the defendants for the re-taxation of costs, in a foreclosure suit. The bill was filed, to foreclose a mortgage, against twenty-one defendants, some of whom were infants. The bill was taken as confessed against all the defendants except the infants; who

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put in the usual general answer, by their guardian ad litem. The taxing officer, in addition to $77,50, for the solicitor’s fees, as fixed by the act of May, 1841, allowed $62,97, for master’s fees upon the reference, and for register’s fees, and other disbursements.

J. Rhoades, for the complainants.

E. F. Smith, for the infant defendants.

The first class of charges which are objected to in this case are the disbursements for register’s fees for filing the bill, and for other services performed by the register, according to the fee bill of May, 1839, previous to the putting in of the answer of the infant defendants. The act of May, 1840, provides that where a bill of foreclosure shall be taken as confessed, or when the answer put in shall not deny any material matter set forth in the bill, nor the right of the complainant to a decree of foreclosure, &c. the several officers named in the act, instead of the fees for their services theretofore allowed, shall receive for their services the compensation therein mentioned ; and that no other fees whatever shall be taxed or decreed against the defendant. The act, after fixing a tariff of solicitor’s and master’s fees in such cases, and prohibiting the allowance of counsel fees, specifies four items of register’s or clerk’s fees; and declares that every other service required of the register, assistant register or clerks, shall be performed without fee or reward. But this act leaves unrepealed the act of 1839, relative to the fees of the register and clerks in chancery which are to be received for the benefit of the state ; except so far as the act of May, 1840, is necessarily in conflict with its provisions. The act of 1839 directs certain fees to be received from or charged to the solicitors, for register’s or clerk’s fees, in foreclosure suits as well as other suits. And, by the 9th section of the act, the register, assistant register, or clerk is bound to require payment in hand for all services rendered officially for any persons

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other than solicitors who have agents residing at the place where the office is located. (Laws of 1839, p. 361.) That act also requires accounts to be kept, not only of the fees actually received, but of all fees, perquisites, and emoluments which the register, assistant register, or clerk shall be entitled to demand and receive from any person, for any service rendered by them in their official capacity, pursuant to law. And the moneys so received they are required to deposit in bank, to the credit of the state treasurer, and transmit their accounts, of the fees paid and unpaid, to the comptroller, periodically. It is impossible, at the commencement of a foreclosure suit, to ascertain whether it will or will not be defended and contested by plea, answer, or demurrer. Until therefore all the defendants have answered, or the bill has been taken as confessed against them, the register, assistant register-, or clerk is bound to demand and receive from the solicitor, for the use of the state, the fees for services performed by them officially, at and after the rate prescribed in the fee bill of 1839. And no provision is made by law for refunding such fees to the solicitor, by the state, or for deducting them from the accounts rendered against him, in casé the defendants after-wards suffer the bill in the foreclosure suit to be taken as confessed, or if they put in an answer which does not contest the complainant’s right to a decree of foreclosure. The only rational construction, therefore, which can be put upon the acts of 1839 and 1840, when taken together, is to construe the provisions of the latter, so far as relates to such fees, as only applicable to services performed by the register, assistant register or clerk, after it is ascertained that the suit will not be defended; and to allow to the solicitor, as a necessary disbursement in the suit, the. fees which he has been compelled to pay for services performed before that time, according to the fee bill of 1839.

The register’s fee for filing the bill, sealing the subpoenas, entering the order for the absentee to appear, entering the order nisi for the appointment of guardian ad litem, copy of the order and filing three affidavits, and for entering the order that

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infants answer the bill, were properly allowed, as necessary disbursements paid by the solicitor. But the allowance of eight cents for entering the bill, ought not to have been allowed j as no such item .is found in the act of May 1839. The allowance, by the folio, for entering any order, decree, or proceeding in the minutes, was intended to cover proceedings which were copied into the register’s minutes of decree sand orders—such as the proof of wills, &c.—and does not apply to the mere memorandum entered in the register or minutes of causes, for which entry no compensation is given by that act. And if the register, assistant register and clerks are in the habit of making such a charge, it must be discontinued. Nor should the fee to the register for filing the draft of orders, to be entered by him, be allowed. Such drafts are delivered to him to be entered in the minutes, but are not to be considered as filed papers.

The fee for filing the amendment to the bill was not properly chargeable against the defendant, without a special affidavit showing that the necessity for such amendment did not arise from the fault or negligence of the complainant’s solicitor, and explaining why such amendment became necessary. Prima facie an amendment of the bill is not taxable as against the defendant. For the same reason the clerk’s fees for the third search, and for filing the second notice of the pendency of the suit, should have been disallowed. But the charge for the second search, after the filing of the bill, to ascertain whether any new incumbrances had been created between the time of the first search and the filing of the notice of the pendency of the suit, if the search was actually made and paid for, was properly allowed as a disbursement in the cause. For the making of such an additional search was a reasonable and proper precaution, where, from the distance from the place of the solicitor’s residence to the clerk’s office, the bill and notice of lis pendens could not be filed immediately after the first search.

The charge of $19,62, for serving the subpoenas upon the defendants, cannot be charged as a disbursement. A

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specific allowance was made to the solicitor for the service of the subpoena upon each defendant, in the act of 1840 to reduce the expense of foreclosing mortgages in the court of chancery, as well as in the general fee bill in the revised statutes. And the allowance to the solicitor of a specific sum, in foreclosure suits where there is no defence, by the act of May, 1841, was intended as a substitute for and to cover all the solicitor’s fees in the cause. The $2,50 allowed by that act, for each defendant in the suit beyond two, was intended to.compensate the solicitor, among other things, for the expense of serving the subpoenas on the additional defendants. And this court has repeatedly decided that where a specific allowance is made to the solicitor, for the performance of any service in a suit, he cannot be allowed for such service as a disbursement, although he employs and pays some other person an extra compensation for the performance of such service. (See 2 Barb. Ch. Pr. 344, and the cases there referred, to.) This charge must therefore be disallowed. For the same reason the charge of $4,62 for serving on the infants the copies of the order nisi to appoint a guardian ad litem, and of one dollar for serving the order on such guardian, must be disallowed ; as the fee bill makes a specific allowance of twenty-five cents, to the solicitor, for serving every rule or order. This is a very inadequate compensation for the service of an order in such a case. But it is not in the power of the taxing officers, or of the court, to change the law in relation to the solicitor’s compensation. The cpurt perhaps may dispense with the necessity of serving an order nisi in such a case, and may make an absolute order for the appointment of a guardian ad litem for the infant, where the solicitor, at the time of the service of the subpoena, also serves a notice that he will' apply for such an absolute order, in case the infant shall neglect to have a guardian ad litem appointed within twenty days after the time for his appearance specified in the subpoena.

The act of May, 1840, having expressly prohibited the. allowance of any counsel fees in foreclosure suits, where

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there is no defence, it is a direct and palpable violation of the declared will of the legislature to allow for the services of counsel in such cases, under the name of disbursements. The two charges of $3,00, paid to counsel for moving for an order to advertise for nonresident defendants, and for the order for the appointment of a guardian ad litem for the infant defendants, were therefore, improperly allowed by the taxing officer.

The allowance to the master of one dollar, for attendance to sign the summons, was improperly allowed, as no such item is found in the bill of master’s fees. The twelve cents for signing the summons is all the master is entitled to charge. The second item in the bill of master’s fees is for attending upon the return of the summons and adjourning the hearing to some future day, upon some reasonable cause. This can seldom be necessary in a reference to compute the amount due upon a mortgage. And the charge should not be allowed, where none of the defendants have appeared, unless in a case where it is necessary for the complainant to produce testimony upon the reference, in a mortgage case, as to the rights of nonresident defendants, or as to the propriety of selling the whole mortgaged premises. The thirty cents, for drawing and copy of the underwriting upon the summons, should also have been disallowed. No provision for such a charge is made in the master’s fee bill. The underwriting, as well as the drawing of the summons, belongs to the duties of the solicitor i and when it is done it should be computed as a part of the summons itself. And in this case the allowance for both is included in the specific, sum to which the solicitor is entitled for all his services in the foreclosure suit, by the act of May, 1841.

The charge of the master for attendance upon the reference, in addition to the specific allowance in the fee bill for computing the amount due upon the bond and mortgage, was proper in this case. For the guardian ad litem of the infants was summoned to attend upon the reference ; and the master was required to examine and re

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port upon the rights of the infant defendants, as well as to take proof of the truth of the allegations in the complainants’ bill in reference to the rights of defendants who were proceeded against as absentees. But upon an exparte reference, merely to compute the amount due upon the bond and mortgage, where none of the defendants have appeared in the cause so as to entitle them to a summons to attend before the master, where the whole amount secured by the bond and mortgage has become due, and where no inquiry is to be made as to the rights of absentees, the master is not entitled to an attendance fee. And the specific allowance in the fee bill, of one dollar for taking an account of what is due upon each bond and mortgage, together with the charges for drawing and engrossing his report and schedules, and for a copy thereof for the complainant’s solicitor, and for marking each bond and mortgage produced before him on the reference, is all that the master is entitled to in such a case.

There is nothing before me to show that the master’s charge of one dollar for attending to settle his report was improperly allowed. If the guardian ad litem attended before the master, upon the return of the summons, to protect the rights of the infant, he was entitled to a copy of the draft of the report, and to the service of a summons to attend the settling of the report; and be had the right to bring in bis objections to the report upon the return of such summons. In such a case the master is entitled to one dollar for attending to settle the draft of the report, if he proceeds ex parte, and three dollars if both parties appear and litigate the same. As the master has charged for attending to settle the draft of his report, and the solicitor swears that this disbursement was actually and necessarily paid, the taxing officer, in the absence of any proof to the contrary, was bound to presume the guardian ad litem of the infant defendants attended before the master, upon the reference, on the return of the first summons, and was duly summoned to attend the master at the subsequent time assigned for settling the draft of the report, or that he agreed

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to waive the service of a summons to attend at the time and place so assigned by the master.

The aggregate of the disbursements which were improperly allowed by the taxing officer, is $34,65. This amount must be deducted from the complainant’s costs as taxed, and the balance only must be paid to the solicitor. And as the guardian ad litem of the infant defendants has succeeded as to about seven-eighths of the amount of disbursements objected to by him, he must be allowed $8 for his costs upon this application, to be paid by the complainants.