
    Charlotte E. Hosmer, Plaintiff, v. James M. Gans et al., Defendants.
    (New York Common Pleas
    Special Term,
    October, 1895.)
    A 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.
    The nature of the motion- and the material facts are stated in the opinion.
    
      EdvearJ H. Tlawlce, Jr., for referee and motion.
    
      James It. Marvin, for defendants, opposed.
   Giegerioh, J.

This is an application to fix the compensation of a referee upon sale of real property, pursuant to section' 3297 of the Code of Civil Procedure, as amended by chapter 24l of the Laws of 1895, which, among other things, provides: “A referee’s compensation, including commissions, ■cannot, where the sale is under a judgment in an action to foreclose a mortgage, exceed fifty dollars unless the property sold for ten thousand dollars or upwards, in which event the referee may receive such additional compensation as to the court may seem.proper, or in any other cause -five .hundred dollars.” It appears from the referee’s report of sale that- the-mortgaged premises, consisting of two lots of land, were sold in separate parcels and realized together the sum of $47,000 ; that the same were sold'subject to certaih liens; and that the-referee, after allowing the purchaser out of the total purchase-price the amount of incumbering charges, aggregating ■ $44,077.60, received and was actually accountable for the sum of $2,922.4CI only. It seems to me that the legislature by the-act in question intended to, give additional compensation only in cases,where the referee actually received and was accountable for $10,000. or more-in cash. Inasmuch as the referee-’herein did not receive, nor was he at any time accountable.for such sum, I think, under the circumstances, that he -is not entitled to a larger amount than fifty dollars as his compensation. I,, therefore, fix. it at that sum.

Ordered accordingly. .  