
    Flynn v. Kennedy et al.
    
    
      (Supreme Court, General Term, First Department.
    
    November 13, 1891.)
    1. Partition—Costs op Sale—Payment by Referee.
    Code Civil Proc. N. Y. §§ 1579,1580, provide that where final judgment confirming a sale in partition is rendered the costs of each party to the action, and the ex- ' penses of the sale, including the officer’s fees, must be deducted from the proceeds of sale, and each party’s costs must be paid to his attorney, and each party’s share paid to the party himself, and not to the attorney. Section 1577 provides that a final judgment in such case is one confirming the sale, directing the officer making it to execute proper conveyances, “ and also directing concerning the application of the proceeds of the sale. ” Held that, without such final judgment containing a direction “concerning the application of the proceeds of the sale, ” the officer making the sale had no right to apply any of the proceeds thereof to the payment of the fees of the attorney of plaintiffs in partition, nor had the court the right to enter an interlocutory order directing such payment, and that such officer, having paid such fees out of his funds, was not entitled to recover the same from the plaintiffs in partition.
    2. Same—Setting Aside Sale—Returning Costs to Referee.
    In such case, however, the purchaser having been relieved from his purchase, and the officer directed to return to him his cash payment of 10 per cent, of the purchase money, the officer is entitled to recover from the plaintiffs in partition the necessary'costs and disbursements of the sale.
    Appeal from judgment entered on report of referee.
    Action by James Flynn against Emma Kennedy and others. From a judgment for plaintiff defendants appeal.
    Reversed.
    Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.
    
      Edward J. Dooley, for appellants. E. H. Benn, for respondent.
   Van Brunt, P. J.

The defendants in this action, by their attorney, brought an action in the supreme court for the partition of some real property in the city of New York. There was no defense, and upon motion the plaintiff was appointed referee.to take the necessary proofs, and to report thereon whether there should be a sale or actual partition. He took the proofs and made his report, which was confirmed, and he was then appointed referee to sell the land. He published the usual notices and such notices as the attorney for the plaintiff directed, and paid the fees and expenses thereof, and in due time sold the land. On the day of sale, and after the purchaser had paid over to the referee, as such referee to sell, 10 per cent, of the purchase money, he, at the request and application of the plaintiff’s attorney, advanced or paid over to the attorney the amount of the costs which in the interlocutory judgment of sale had been improperly adjudged and awarded to the plaintiff, and took a receipt from said attorney for said sum, which receipt contained the following language: “Which sum I am to return to him in case the purchaser refuses to complete his purchase on or before the 2d of June, 1890.” The order confirming said sale and final judgment was made and entered in said action on the 22d of May, 1890; and such proceedings were had subsequently that on the 16th of October, upon the motion of the assignee of the purchaser, an order was made relieving said assignee from the bid and purchase made at such sale, and directing said referee to pay to the purchaser or his attorney out of the moneys received by him upon said sale the costs of the motion, the 10 per cent, paid on said sale, the auctioneer’s and exchange fees, and the amount of the expenses of said attorney on the examination of the title; and said order provided that in the event that said referee had not sufficient funds to make said payment in full, then the plaintiffs in that action (the defendants in this action) were required to pay the balance of said sum so remaining unpaid by the referee. On the 25th of October, 1890, the plaintiff, pursuant to such order, paid to the assignee of the purchaser said 10 per cent, which had been received by him. Thereupon this action was brought by the plaintiff herein against the plaintiffs in the partition action to recover back the costs paid by him to their attorney, the disbursements which had been made by him for publishing notices, etc.,, and for his fees and commissions upon the sale. The defendants having denied liability for these sums, upon consent the issues were referred to a referee, who reported in favor of the plaintiff for the whole amount except his commission upon the sale, and from the judgment thereupon entered this appeal is taken.

We think that the referee was entitled to his fees, having performed all the services under the interlocutory decree of sale which he was called upon to perform. He was also entitled to recover the expenses to which he was put for advertising, etc., they having been incurred at the request of the defendants’ attorney in the prosecution of the action to prosecute which he had been retained by them. But we do not see upon what theory the costs which were paid to the plaintiff’s attorney can be recovered back by the referee. It is true that the interlocutory judgment adjudged that the plaintiff was entitled to costs, and the amount thereof seems to have been inserted therein; but this was entirely without authority under the Code. By section 1579 of the Code it is provided that where final judgment confirming a sale is rendered the costs of each party to the action, and the expenses of the sale, including the officer’s fees, must be deducted from the proceeds of the sale, and each party’s costs must be paid to his attorney, and by section 1580 the share of the party must be paid to him or his legal representatives, and not to his attorney of record. It is clear from the language of these sections that it is not until final judgment confirming a sale is rendered that the costs can be paid, and it seems equally clear that such costs cannot be paid until the proceeds of sale are realized, because the provision is that they are to be deducted from the proceeds of sale, and after being deducted each party’s costs must be paid to his attorney. Section 1577 determines what a final judgment in a partition suit is. It provides that if the sale is confirmed by the court a final judgment must be entered confirming it accordingly, directing the officer making it to execute the proper conveyances and take the proper securities pursuant to the sale, and also directing concerning the application of the proceeds of the sale. Therefore it seems to be clear that such a final judgment must contain a direction concerning the application of the proceeds of the sale, and that no distribution can be made before the entry of such a final judgment. If it is claimed that such a final judgment was entered in the case at bar because the sale was confirmed, it may be answered that the proceeds of sale had not been received as contemplated by the final judgment, and consequently there was nothing from which these costs and expenses could be deducted. We think, therefore, that the referee stands in precisely the same relation .towards these defendants as though he had not made these disbursements, and was seeking to recover that which he was entitled to recover by reason of his relation to them in the partition action. For the disbursements which he had made in reference to the sale, and for his fees as referee for the services which he had performed, he had a right of action as against the defendants, (the plaintiffs in the partition action,) but for the costs which he paid out, before he was authorized by law so to do, we do not see how he has any claim against the plaintiffs therefor. The plaintiffs had the right to contest the question as to whether their attorney was entitled to any compensation for his services, and they could not be deprived of this right by a premature payment of such costs to such attorney. That the referee looked to the responsibility of the attorney in reference to this payment seems to be shown by the language of the receipt, because it isa personal obligation upon the part of the attorney to return the money in case the sale should not be completed. Much as we would like to relieve the referee from, the unfortunate position in which his good nature seems to have placed him, we do not see upon what principle a recovery for these costs, paid by him without authority, could be had. We think, therefore, that the judgment must be reversed, and a new trial had, with costs to appellant to abide event, unless the plaintiff stipulates to reduce the judgment by the amount of such costs, and in case such stipulation is given the judgment as so reduced should be affirmed, without costs. All concur.  