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John M. Harrington, Resp., v. Laura Bayles, Aplt.

PARKER, Ch.J.; O'BRIEN, BARTLETT, HAIGHT, VANN and CULLEN, JJ., concur.

Order affirmed.

See same case below, decision in Appellate Division, 33 N. Y. Civ. Pro. 298.

JOHN M. HARRINGTON, PLAINTIFF-RESPONDENT, v. LAURA BAYLES, DEFENDANT-APPELLANT.

SUPREME COURT-APPELLATE TERM-APRIL, 1903.

§ 3297.

Compensation of Referee-Action to Foreclose Mortgage.

A referee appointed in an action to foreclose a mortgage to conduct the sale of the mortgaged premises, may be entitled both to fees and commissions as his compensation. The fees are determined differently in different parts of the State; in New York County by section 1088 of the Consolidation Act. The commissions are uniform throughout the State and are determined by section 3297 of the Code of Civil Procedure; the referee is entitled to commissions only when a sale has taken place.

Such a referee is not entitled to recover as a disbursement fees paid to an auctioneer for adjourning the sale.

(Decided April, 1903.)

Appeal by the defendant from a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Eleventh District, rendered in favor of the plaintiff upon a trial had before the court, without a jury.

Alfred Pagelow, for appellant.

John M. Harrington, respondent in person.

John M. Harrington, Resp., v. Laura Bayles, Aplt.

GIEGERICH, J.-The action is to recover fees for services rendered by the respondent, as referee, under a judgment of foreclosure and sale in an action in which the appellant was the plaintiff, and for auctioneer's fees paid therein by the respondent.

The pleadings were written. The complaint contained two causes of action; one for services rendered as such referee at the appellant's request, the value of which was placed at $50, and the other for fees of an auctioneer amounting to $15, which the respondent claims were paid by him as a disbursement in connection with his duties as such referee. The answer put in issue the allegations as to the rendition and value of the services and, for a separate defense, set up that a sale of the premises never took place, and that in consequence thereof neither the respondent nor the auctioneer became entitled to any fees whatever.

It appears from the evidence elicited and the admissions made at the trial that the respondent was served with a certified copy of the judgment by the representative of the attorneys for the plaintiff in such foreclosure action; that the respondent selected an auctioneer, caused the notice of advertisement of sale to be published, and on the day fixed for the sale attended at the place where the premises were to be sold, and at the request of the plaintiffs' attorney in such action adjourned the sale to a subsequent date, and that when that date arrived he again attended, and upon the like request adjourned the same, and that in the meanwhile the owner of the equity of redemption offered, and the respondent accepted, the full amount of such judgment, including costs. The respondent subsequently demanded payment of his fees, but no part thereof was paid.

Testimony was also given to the effect that the sum paid to the auctioneer by the respondent for adjourning the sale was reasonable.

At the trial the appellant contended that under section 1088 of the Consolidation Act the respondent was not entitled to

John M. Harrington, Resp., v. Laura Bayles, Aplt.

any fees whatever, but the justice held that the point was not well taken and gave judgment in the latter's favor for the full amount claimed, and an appeal was taken to this court.

When the appeal was reached for argument, the respondent claimed that it was in the same position as if it had been actually dismissed, by reason of the appellant's failure to argue the appeal at the December Term, as required by the order granted herein on October 22, 1902, upon a motion to dismiss the appeal for failure to file a return. While it is true that the appeal was not argued at such term, it is equally true that the argument thereof was for a good and sufficient reason postponed until the present term without prejudice to the rights of the appellant, and under such circumstances we had no alternative but to overrule the objection and direct that the argument of the appeal proceed. The respondent thereupon refused to take any further part in the appeal, and it is to be regretted that such important questions as are presented have to be decided without the assistance of either an oral argument or a brief in his behalf.

It was said by the court in Innes v. Purcell (2 T. & C. Rep., at page 539), in speaking of the fees of a referee:

"It has always been the policy of the law to prescribe and fix the compensation which may be demanded for the performance of legal duties by public officers. And where no provision has been made, either directly or indirectly, no fees can lawfully be demanded. Costs and fees are recoverable by virtue of statutory authority, and where no such authority exists, no claim for their recovery can be strictly maintained," citing Downing v. Marshall (37 N. Y. 380).

The question thus arises whether there is any statute fixing the fees of a referee in foreclosure sales in New York County, and if so, at what rate. In order to obtain a thorough understanding of the situation, it becomes necessary to examine the various statutes which were passed before the provisions of the Consolidation Act above referred to were enacted, and the decisions construing such statutes.

John M. Harrington, Resp., v. Laura Bayles, Aplt.

Prior to the adoption of the Constitution of 1846, mortgages were foreclosed by action in the Court of Chancery and the sale was made under the direction of a master in chancery. His fees for performing certain services were prescribed with great particularity by the Revised Laws and subsequent enactments. Thus, under the Revised Laws of 1813 (I. R. L., pp. 5, 6, sec. 1), he was entitled to 50 cents for drawing the advertisement or public notice of sale, $1 for attending and adjourning sale, $5 for preparing and executing a deed to the purchaser, and such further allowance by way of commissions as the chancellor judged to be reasonable. Besides these fees the master was allowed the printers' bills.

These provisions, except those relating to an additional allowance, were incorporated into the Revised Statutes (I. I. R. S., Part III, chap. X, title III, sec. 7, pp. 625, 626).

The latter provided for the allowance by the chancellor of commissions, not exceeding the sum of $20, after notice given to the party to be charged therewith.

These provisions remained in force until 1880, when they were repealed (chap. 245, page 368).

The fees allowed by the Revised Statutes were materially reduced by chapter 342 of the Laws of 1840, but such act was repealed in the following year (Laws of 1841, chap. 237).

The Constitution of 1846 having abolished the office of master in chancery, as well as the court itself, the Judiciary Act of 1847 (chap. 280) was passed in order to meet the necessities arising from the changes thus made. Section 77 thereof, among other things, provided that, after the first Monday of July of that year, sheriffs might sell any lands in their respective counties ordered to be sold by decree of any court of record in the State, and give conveyance thereof in the same manner and with like effect as was then done by a master in chancery and for that service; it was further provided that, in addition to his disbursements for printers' fees he should be entitled to receive the same fees as upon sales

John M. Harrington, Resp., v. Laura Bayles, Aplt.

by virtue of an execution, but that the whole should in no case exceed the sum of $10.

The foregoing provisions were repealed by the Laws of 1877 (chap. 417, page 471), and by the Laws of 1880 (chap. 245, page 370).

In 1869 an act (chap. 569) relating exclusively to the City and County of New York was passed. Since this is the source of various subsequent enactments relating to the fees of officers authorized to sell lands in foreclosure actions as well as in actions of partition, it is herewith set forth in full:

"Section 1. All sales of real estate hereafter in the City and County of New York under the decree or judgment of any court of record (except sales in cases of partition, and where the sheriff of said city and county is a party) shall be made by the sheriff of said city and county.

"Sec. 2. In cases of sales on foreclosure, he shall be enFor retitled to receive the following fees and no more: ceiving order of sale and posting notices of sale, $10; for attending sale, $10; for drawing each deed of premises sold, $5; for attending and adjourning a sale at the request of the plaintiff in the action or by order of the court, $3, but no more than three such adjournments in one action shall be charged for; for making report of sale, $5; for paying over surplus moneys, $3. And all disbursements made by him for printers' fees at the rate allowed by law therefor, fees of officers for taking acknowledgments and administering oaths, and for internal revenue stamps affixed to conveyances executed and delivered by him, and all auctioneers' fees actually paid by him, but not to exceed for such auctioneers' fees $12 for each parcel separately sold, which auctioneers' fees shall be paid by the purchaser of the parcel in addition to the amount bid by him therefor.

"Sec. 3. In cases where there is no other officer to whom, according to the provisions of law, a police justice may direct a commitment, and when no such officer is present, such police justice shall direct the same to the sheriff of said city and

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