Shiro v. Shiro

Appellate Division of the Supreme Court of New York

Shiro v. Shiro

237 A.D. 122, 261 N.Y.S. 141, 1932 N.Y. App. Div. LEXIS 5285

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 20, 1932

StatusPublished

Cited by1 cases

This text of 237 A.D. 122 (Shiro v. Shiro) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shiro v. Shiro, 237 A.D. 122, 261 N.Y.S. 141, 1932 N.Y. App. Div. LEXIS 5285 (N.Y. Ct. App. 1932).

Pincite

Opinion

Per Curiam.

The action was for an accounting. After a decision and interlocutory decree in favor of the plaintiff an order appointing the respondent “ to hear and determine the amount of money wrongfully appropriated by the defendants belonging to the plaintiff in the conduct of the plaintiff’s business ” was made. After filing his report the respondent moved for an order directing that out of certain moneys on deposit to the credit of defendants, his fees as referee be paid. The motion was granted to the extent of fixing a lien upon the deposit in favor of the referee in the sum of $1,825.

Assuming without conceding that the record establishes the agreement for compensation relied upon by the referee, the order fixing a lien for the services in the amount claimed was unauthorized. Respondent’s remedy was not for summary relief by motion, but by an action at law (Little v. Lynch, 99 N. Y. 112, 114), where the issue as to the necessity for the time alleged to have been devoted to the work of the reference may be contested.

It follows that the order appealed from should be reversed, with twenty dollars costs and disbursements to the plaintiff, and the motion denied, with ten dollars costs.

Present — Finch, P. J., Martin, O’Malley, Sherman and Townley, JJ.

Order reversed, with twenty dollars costs and disbursements, and motion denied, with ten dollars costs.

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Per Curiam.

The action was for an accounting. After a decision and interlocutory decree in favor of the plaintiff an order appointing the respondent “ to hear and determine the amount of money wrongfully appropriated by the defendants belonging to the plaintiff in the conduct of the plaintiff’s business ” was made. After filing his report the respondent moved for an order directing that out of certain moneys on deposit to the credit of defendants, his fees as referee be paid. The motion was granted to the extent of fixing a lien upon the deposit in favor of the referee in the sum of $1,825.

Assuming without conceding that the record establishes the agreement for compensation relied upon by the referee, the order fixing a lien for the services in the amount claimed was unauthorized. Respondent’s remedy was not for summary relief by motion, but by an action at law (Little v. Lynch, 99 N. Y. 112, 114), where the issue as to the necessity for the time alleged to have been devoted to the work of the reference may be contested.

It follows that the order appealed from should be reversed, with twenty dollars costs and disbursements to the plaintiff, and the motion denied, with ten dollars costs.

Present — Finch, P. J., Martin, O’Malley, Sherman and Townley, JJ.

Order reversed, with twenty dollars costs and disbursements, and motion denied, with ten dollars costs.

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Bluebook (online)

237 A.D. 122, 261 N.Y.S. 141, 1932 N.Y. App. Div. LEXIS 5285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shiro-v-shiro-nyappdiv-1932.

Opinion

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