
    William Carter, Appellant, v. Builders' Construction Company and Others, Defendants. Sampson H. Weinhandler, Referee, Respondent.
    (No. 2.)
    First Department,
    March 5, 1909.
    Judicial sale —liability of plaintiff for expenses — practice — recovery of sums expended by referee — no relief by motion.
    A referee appointed to sell lands on foreclosure may refuse to act unless the plaintiff advances moneys to coVer the necessary expenses, but where he himself has advanced the expenses of one sale and the plaintiff refuses to reimburse him prior to a second sale made necessary by the refusal of the purchaser to take title, the referee cannot by motion summarily compel the plaintiff to pay the expenses already incurred.
    Having conducted the sale without requiring the plaintiff to advance the expense, his only remedy is by action.
    Appeal by the plaintiff, William Carter, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the lltlx day of February, 1909, directing the plaintiff to pay a certain sum incurred by the referee, or, in default, that a commitment issue.
    
      George A. Stearns, for the appellant.
    
      Sampson H. Weinhandler, respondent, in person.
   McLaughlin, J.:

This action was brought to foreclose a mortgage upon real estate. The respondent was appointed referee to sell, and incurred certain expenses in advertising and selling. The purchaser at the sale refused to take title, on the ground that the notice of sale was defective. This was conceded and the premises readverstied,, but a second sale has not talceu place. There are prior liens upon the property, and the referee considered it at least doubtful whether upon the resale enough would be realized to pay the expenses already incurred. He requested the plaintiff to advance this amount, which he refused to do, and thereupon the referee made a motion, really for instructions, which resulted in an order staying the sale until an appeal taken in the action had been heard, and determined, and- directing the plaintiff to pay to the referee the expenses already incurred by him, and in default thereof that a commitment issue.- The plaintiff appeals from this order.

Ordinarily the expenses incurred upon the sale of mortgaged premises pursuant to a judgment are paid from the proceeds of the sale and it may be if enough is not realized from the-sale to pay the necessary expenses attending it, then the party-at whose instance the sale is made would be liable in an action to recover the same, but such payment cannot be directed in the summary way here attempted. A -party cannot b'e compelled by order to pay the: fees or expenses of a- referee. (Fischer v. Raab, 81 N. Y. 235 ; Geib v. Topping, 83 id: 46 ; Morrow v. McMahon, 71 App. Div. 171 ; Perkins v. Taylor, 19 Abb. Pr. 146.) The referee was not obliged to act, and before -lie incurred any expenses he could have insisted that the judgment creditor advance the necessary amount, and if this were not done, he could refuse to act. Not having done either, it would seem that his only remedy now is by action.

The order, appealed from, therefore, is reversed,.but under the circumstances, without - costs.

Ingraham, Clarke, Hohghton and Scott, JJ., concurred.

Order reversed, without costs.  