John M. Harrington, Resp., v. Laura Bayles, Aplt. and for drawing and executing a conveyance upon a sale of real property, $5, to be paid by the grantees (subd. 9). The act in question, however, is silent as to the following services specified in section 2 of the Act of 1869, as continued in section 1088 of the Consolidation Act, and for which compensation is therein provided, viz: Attending sale; attending and adjourning sale at the request of the plaintiff; making report of sale and paying over surplus moneys. It was not and could not have been within the intention of the Legislature, in enacting the law under review, to deprive referees of their fees for performing these services in foreclosure actions. Such is not a fair and reasonable construction of the act in question. It should rather be inferred from these very omissions that the law-making power did not intend, by enacting the provisions above quoted, to supersede section 1088 of the Consolidation Act, which fixes the fees of the sheriff as well as of referees in such cases on sales in foreclosure actions, but only intended to affect the sheriff's fees for services rendered under a judgment other than one of foreclosure and sale. Recourse must, therefore, be had to that part of the Consolidation Act, above cited, which, as above stated, superseded section 2 of the Act of 1869, and relates directly and exclusively to fees on foreclosure sales, and, therefore, governs the disposition of the questions arising with respect to the respondent's fees as referee. It will be observed that the term "fees" is used, instead of "compensation." The distinction between these terms as well as the term "commissions" was pointed out by the chancellor in Delavan v. Payn (supra), and it has ever since been recognized and applied in statutes passed, and in decisions handed down subsequent to the enactment of the Revised Statutes, and including the Act of 1869, as well as section 3297 of the Code of Civil Procedure (see Innes v. Purcell, John M. Harrington, Resp., v. Laura Bayles, Aplt. supra; Guinivan v. Carroll, 4 Law Bull., p. 6; Richards v. Richards, supra; Hobart v. Hobart, 86 N. Y. 636; Race v. Gilbert, 102 N. Y. 298). Upon turning to the latter, it will be seen that provision is there made for the allowance to the referee of certain commissions when he 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; but that commissions shall not be allowed 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. Under these provisions a payment of the proceeds to the parties entitled, in accordance with their respective rights, in a "distribution" of such proceeds; and a payment upon incumbrances "applies" the sum paid thereon, so as to entitle the referee to such additional compensation by way of commissions (Race v. Gilbert, supra). In the case just cited, the Special Term struck out the item. of commissions and the General Term, in affirming the order, held that the referee, under the circumstances above mentioned, was entitled to receive the same fees as a sheriff does upon the sale of real estate under an execution, viz: Three per cent. on a sum not exceeding $250, and two per cent. on the residue. The Court of Appeals, however, reversed so much of the order of the General Term as denied the right to commissions for distributing and applying as above defined. In their note to section 3297 the commissioners say that they made the provision regulating the commissions general instead of limiting it to partition, but that the Legislature reduced the amount of the referee's commissions to one-half of the commissions of executors (Throop's Ann. Code of 1891, page 901). It will be recalled that the provisions with respect to commissions were taken from section 4 of the Act of 1869, which, as already stated, related only to partition suits and allowed the full commissions of executors. John M. Harrington, Resp., v. Laura Bayles, Aplt. As above pointed out, however, a limitation upon the amount of a referee's compensation, including commissions, in an action to foreclose a mortgage, is expressly imposed by the concluding sentence of section 3297. It will thus be observed that the first sentence of section 3297, allowing a referee appointed to sell property pursuant to a judgment in an action the same fees as those allowed to the sheriff, is not, as might appear at first blush, the only provision which is contained in the entire section for his compensation for services so rendered. On the contrary, the portions immediately following those referred to provide for commissions for moneys received, distributed or applied as well as fees for rendering certain enumerated services, which in an action to foreclose a mortgage would, as seen, include the receiving of the order of sale and the posting of notices of sale, attending the sale, drawing the deed of the premises sold, attending and adjourning the sale, the making of the report of sale and the paying over of surplus moneys (Richards v. Richards, supra; Hobart v. Hobart, supra; Race v. Gilbert, supra). The services last mentioned are those for which "fees" are allowed. For certain other services, viz, "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" (sec. 3297) the referee is entitled to "commissions." The "fees" are determined differently in different parts of the State; in New York County by section 1088 of the Consolidation Act, as above shown. The "commissions" are uniform throughout the State and are determined by section 3297 of the Code. That commissions are allowed to referees in foreclosure, as well as in partition, is obvious not only from the statement of the revisors above quoted that they had made the provisions for commissions general instead of limiting them to partition, but also from the express language of the section, as John M. Harrington, Resp., v. Laura Bayles, Aplt. follows: "A referee's compensation, including commissions, cannot, where the sale is under a judgment in an action to foreclose a mortgage, exceed $50 or in any other case $500." * It is equally plain, however, that the referee is not entitled to such commissions where a sale has not taken place (Walbridge v. James, supra; Lockwood v. Fox, supra). The court, in the first cited case, adverting to the commissions of the referee in an ineffectual sale, at page 13 said: "He can have commissions only on the consummated sale. He can have commissions only on such moneys as were actually or constructively received and paid over under the decree." This being our view of the law, the plaintiff, under the circumstances disclosed, was entitled to charge only for the following services: For receiving and posting notices of sale ...... $10 sale at the request of the plaintiff in the fore- Total 6 $16 The remaining question relates to the auctioneers' fees, amounting to $15, which the plaintiff testified he paid to the auctioneer for having upon two occasions adjourned the sale. These fees were not a proper charge (Ward v. James, supra, at page 527), and it was error for the justice to allow them. As a result of the foregoing considerations it follows the judgment must be modified by reducing the recovery for damages from $65 to $16, which latter sum, with the sum heretofore awarded for fees, extra costs and prospective fees, amounts in all to the sum of $36.15 damages and costs, and as so modified affirmed, but without costs of this appeal to either party as against the other. FREEDMAN, P.J., and GILDERSLEEVE, J., concur. H. Whitney Tew, Respondent, v. Henry Wolfsohn, Appellant. Judgment modified by reducing the recovery for damages from $65 to $16, which latter sum, with the sums heretofore awarded for fees, extra costs and prospective fees, amounts to the sum of $36.15 damages and costs, and as so modified affirmed, but without costs of this appeal to either party as against the other. H. WHITNEY TEW, RESPONDENT, v. HENRY WOLFSOHN, APPELLANT, IMPLEADED WITH ANOTHER. COURT OF APPEALS-APRIL, 1903. §§ 484, 497. Demurrer to Complaint Overruled-Held That Causes of Action Had Not Been Improperly United. A complaint may be defective in clearness of statement, or in logical order, and the plaintiff may not be able at the trial to prove his case, as stated. The objection must be determined upon a view of the whole complaint reasonably construed with reference to the facts stated and every reference flowing from such facts. A word, a phrase, or a sentence, in a complaint, is not to be fastened upon and given a meaning; it will not fairly bear in order to sustain the demurrer. Every reasonable and fair intendment is to be made in support of the pleading. (Decided April, 1903.) |