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

county, who shall be entitled to receive such fees for his services therefor, not exceeding 50 cents on each commitment, as shall be allowed by the supervisors of the County of New York.

"Sec. 4. In cases of sales in actions of partition by referees appointed by the court, they shall be entitled to receive the same fees and disbursements as are allowed by section 2 hereof to the Sheriff of the City and County of New York, and in addition thereto commissions on all moneys received and paid out by them, at the same rate as are allowed by law to executors and administrators. Provided, however, that the commissions allowed by this section shall not, in any case, exceed the sum of $500."

Section 1 of the foregoing provisions was amended by chapter 192 of the Laws of 1874, as hereafter shown, and as thus amended, it, together with section 2, has been included in section 1088 of the Consolidation Act; section 3 was repealed by the Laws of 1874 (chap. 192) and by the Laws of 1881 (chap. 537, page 772), and section 4 was repealed by the Laws of 1880 (chap. 245, page 372) (see Silvernail's Index to the Laws of New York from 1775 to 1897, p. 537), but its provisions were modified and embodied in section 3297 of the Code of Civil Procedure (see Throop's Ann. Code of 1891, p. 901).

As above noted, section 1 of the foregoing act was amended and section 3 thereof was repealed by chapter 192 of the Laws of 1874, the former, as thus amended, reading as follows:

"Sales of real estate hereafter made in the City and County of New York, under the decree or judgment of any court, may be made by the sheriff of said city and county, or by a referee appointed for that purpose, by such judgment or decree; but when any sale is made by any officer other than the sheriff no greater sum shall be charged or allowed as fees than is prescribed in section 2 of this act."

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

By the act of 1876 (chap. 431, sec. 11, page 456) section 309 of the Code of Procedure was, among other things, amended by adding the following provision:

"Nor shall a greater sum than $50 be charged by or allowed to any sheriff, referee or other officer for his fees, percentage or services for any sale under a decree or judgment of foreclosure."

On the first day of September, 1880, sections 1496 to 3356, both inclusive, comprising Chapters XIV to XXII, inclusive, of the Code of Civil Procedure went into effect. Among these is section 3297, which, as amended by subsequent enactments, reads as follows:

"The fees of a referee appointed to sell real property, pursuant to a judgment in an action, are the same as those allowed to the sheriff, and he is allowed the same disbursements as the sheriff. Where a referee is required to take security upon a sale, or to distribute, or apply, or ascertain and report upon the distribution or application of any of the proceeds of the sale, he is entitled to one-half of the commissions upon the amount so secured, distributed or applied, allowed by law to an executor or administrator for receiving and paying out money. But commissions shall not be allowed to him upon a sum bidden by a party, and applied upon that party's demand, as fixed by the judgment, without being paid to the referee, except to the amount of $10. And a referee's compensation, including commissions, cannot, where the sale is under a judgment in an action to foreclose a mortgage, exceed $50, unless the property sold for $10,000 or upwards, in which event the referee may receive such additional compensation as to the court may seem proper, or in any other cause, $500."

This section is said by Mr. Throop to have been taken from the Laws of 1869 (chap. 569, sec. 4), as amended by chap. 192 of the Laws of 1874; and sec. 309 of the Code of Procedure, as amended by the Laws of 1876 (chap. 431, supra). (Throop's Ann. Code of 1891, page 901).

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

In 1882 the Consolidation Act (chap. 410) was enacted, sec. 1088 above referred to reading as follows:

"Sales of real estate hereafter made in the City and County of New York, under the decree or judgment of any court, may be made by the sheriff of said city and county, or by a referee appointed for that purpose, by such judgment or decree; but when any sale is made by any officer other than the sheriff, in an action of foreclosure, no greater sum shall be charged or allowed as fees than the following: In cases of sale on foreclosure, the sheriff shall be entitled to receive the following fees and no more; for receiving 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 not 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 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 paid by him therefor."

The foregoing provisions were taken from the Laws of 1869 (chap. 569, secs. 1 and 2), as amended by the Laws of 1874 (chap. 192). (See Laws of 1880, volume II, page 303, marginal note; Silvernail's Index, supra, and are unaffected by the Greater New York Charter, Ash's Greater New York Charter, LXI).

Before passing to the consideration of the question whether the foregoing section has been superseded, it becomes necessary to consider the same, as well as the other enactments upon the subject, in the light of the decisions which have been handed down from time to time. In 1840, while the act passed in that year (chap. 342) was in force, the chancellor,

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

in construing its provisions, held that the restriction contained in such act that no other fees whatever than those therein prescribed should be taxed or decreed against the defendant or demanded or received from him, did not have the effect of excluding the power to award commissions provided for by the Revised Statutes (Delavan v. Payn, 8 Paige's Ch. Rep., p. 459).

In the case cited, the chancellor, in discussing the effect of said act upon the commissions allowed by the Revised Statutes, among other things, said, at page 460:

"The question therefore arises, whether the term fees, as used in that act, includes the compensation allowed by the former statute, by way of commissions upon moneys received and paid over by masters, and other officers of the court. By referring to the General Fee Bill in the Revised Statutes, it will be seen that the master's fees upon sales in this class of mortgage cases were very much reduced by the Act of May, 1840, so as to give him a very trifling compensation for his services in advertising the property, attending the sale and drawing the deed and report; exclusive of his risk and responsibility in receiving and paying out moneys. I cannot, therefore, believe that the Legislature intended, in that act, to deprive the master of the commissions which were allowed to him under the Revised Statutes. The provision in the Revised Statutes authorizing the master to charge for disbursements and for commissions upon sales is contained in the same clause of the section of the statute relative to master's fees. And as neither the commissions nor the disbursements are, in common parlance, or even in technical language, called fees, if the master is not allowed to retain his commissions upon sales under the recent act, it is difficult to say upon what principle he can be permitted to retain for his disbursement for the printer's bill. I conclude then that the term fees, in the act of May last, was intended to deprive the master of his commissions."

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

That decision was followed in Innes v. Purcell (supra), decided in the year 1874, wherein the General Term of the First Department, reversing an order allowing $100 to a referee appointed to sell in a foreclosure action, held that the power to allow commissions provided by the Revised Statutes still continued, notwithstanding the Act of 1847 limited the fees to the amount of $10, and also, in construing section 287 of the Code of Procedure, as amended by the Laws of 1851, appendix 95, directing that real estate adjudged to be sold must be sold by the sheriff of the county or by a referee appointed for that purpose, and that thereafter the sheriff or referee must execute a conveyance which shall be effectual to pass the rights and interest of the parties adjudged to be sold, held that the referee appointed to sell in such an action is entitled only to the same amount allowed by law to the sheriff for the performance of a similar duty.

In Ward v. James (8 Hun, 526), decided in October, 1876, a gross sum of $50 was allowed the referee in a foreclosure action where the property was not sold, although advertised for sale, and it was held that the court below had no power to award it.

In Walbridge v. James (16 Hun, p. 8) the property was situated in a county other than New York, and it was held by the General Term of the Third Department in November, 1878, that the effect of the limitation placed by section 309 of the Code of Procedure was to fix the maximum of fees, and that such limitation stood at $50 instead of $10 fixed by the former statute, but that it expressly covered both fees and percentage. It was further held that where a sale was for any reason ineffectual the referee was entitled under the circumstances to 50 cents for receiving and entering the decree, and $2 for advertising the property for sale. The former fee appears to have been warranted by chapter 415, Laws of 1871, entitled "An act in relation to the fees of sheriffs except in the Counties of New York, Kings and Westchester," and the