Dime Sav. Bank v. Pettit

New York Supreme Court

Dime Sav. Bank v. Pettit

59 N.Y.S. 794

DecidedAugust 15, 1899

StatusPublished

This text of 59 N.Y.S. 794 (Dime Sav. Bank v. Pettit) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dime Sav. Bank v. Pettit, 59 N.Y.S. 794 (N.Y. Super. Ct. 1899).

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Opinion

McADAM, J.

The referee is not entitled, under section 3297 of the Code, to additional compensation on a sale of real estate on foreclosure unless he has actually received and is accountable for $10,000 or more in cash. Hosmer v. Gans, 14 Misc. Rep. 229, 35 N. Y. Supp. 471; Insurance Co. v. Bendheim (May 20, 1898) 59 N. Y. Supp. 793. In this case the property was sold for $110,000, and bought in by the plaintiff, leaving a deficiency of. about $13,000. The plaintiff waived the payment of the 10 per cent., so that the referee has re-' ceived nothing. Clearly, extra compensation ■ cannot be demanded here. The statute fixes the referee’s fees at a sum not to exceed $50 in cases where the property is sold for less than $10,000. Code, § 3297. The provision that, where the property sells for $10,000 or upwards, “the referee máy receive such additional compensation as to the -court may seem proper,” not to exceed $500, applies only to cases which' are exceptional and unusual, in which the referee has had more than •the ordinary amount of labor, and was-never intended to apply to every case where the sum realized is more than $10,000. Such a construction would be absurd. There would be no need of leaving-the matter to the discretion of the court, because there would be nothing but the amount realized to base a discretion upon. The rule is not-an arbitrary, but an equitable, one; intended to meet cases in which" it is evident to the court that $50 is inadequate. From the number of applicants for such references, it is very safe to assume that the majority are satisfied with $50.

Motion denied, without costs.

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McADAM, J.

The referee is not entitled, under section 3297 of the Code, to additional compensation on a sale of real estate on foreclosure unless he has actually received and is accountable for $10,000 or more in cash. Hosmer v. Gans, 14 Misc. Rep. 229, 35 N. Y. Supp. 471; Insurance Co. v. Bendheim (May 20, 1898) 59 N. Y. Supp. 793. In this case the property was sold for $110,000, and bought in by the plaintiff, leaving a deficiency of. about $13,000. The plaintiff waived the payment of the 10 per cent., so that the referee has re-' ceived nothing. Clearly, extra compensation ■ cannot be demanded here. The statute fixes the referee’s fees at a sum not to exceed $50 in cases where the property is sold for less than $10,000. Code, § 3297. The provision that, where the property sells for $10,000 or upwards, “the referee máy receive such additional compensation as to the -court may seem proper,” not to exceed $500, applies only to cases which' are exceptional and unusual, in which the referee has had more than •the ordinary amount of labor, and was-never intended to apply to every case where the sum realized is more than $10,000. Such a construction would be absurd. There would be no need of leaving-the matter to the discretion of the court, because there would be nothing but the amount realized to base a discretion upon. The rule is not-an arbitrary, but an equitable, one; intended to meet cases in which" it is evident to the court that $50 is inadequate. From the number of applicants for such references, it is very safe to assume that the majority are satisfied with $50.

Motion denied, without costs.

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59 N.Y.S. 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dime-sav-bank-v-pettit-nysupct-1899.

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