
    In the Matter of the Application of Edward D. Candee, as Receiver of the Anglo-American Savings and Loan Association of New York, Appellant, for a Writ of Peremptory Mandamus against John Cunneen, Attorney-General, Respondent.
    
      Receiver—approval by the Attorney-General of a contract foi' the employment and compensation of attorneys and counsel by receivers—not compelled by mandamus —purpose of section 4 of chapter 60 of the Laws of 1902.
    Section 4 of chapter 60 of the Laws of 1902 provides as follows: “The receiver may employ not to exceed one counsel and may make such payment upon account for legal services during the progress of the receivership as shall he just and proper, hut no such payment on account shall he made to any counsel except upon the approval thereof in writing hy the attorney-general, and such payments shall be subject to the order of the court in whole or in part upon the final settlement of the receiver’s accounts to the same extent as the accounts of general assignees are subject to revision and allowance; but no compensation shall be allowed to an attorney for a receiver unless an, agreement for his compensation has been made in writing upon the approval of the attorney-general. Additional counsel shall be employed only upon the written approval of the attorney-general.”
    
      Held, that two things were sought by the section: (1) To limit the payments on L account for legal services during the progress of the receivership to such as are approved in writing by the Attorney-General; (2) to prohibit the allowance of compensation to an attorney “unless an agreement for his compensa- • tion has been made in writing upon the approval of the attorney-general; ” That the section was not susceptible of the construction that the approval required from the Attorney-General relates to the necessity of employing an attorney and counsel, and that if the necessity of employing an attorney and counsel be conceded, it is the duty of the Attorney-General to approve a contract of employment in which compensation is provided for, generally, without in any way fixing or limiting the amount thereof;
    That the Attorney-General should not be required by mandamus to approve a contract made by a receiver with an attorney and counsel selected by him. Quiere, as to the constitutionality of the statute.
    Appeal by the petitioner, Edward D. Oandee, as receiver of the Anglo-American Savings and Loan Association of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 14th day of November, 1903, denying the petitioner’s application for a writ of peremptory mandamus.
    Edward D. Oandee was appointed permanent receiver of the Anglo-American Savings and Loan Association on the 5th day of . January, 1900. From the time of his said appointment he has, as such receiver, continuously employed Myer Nussbaum as his attorney and counsel. From February 26, 1902, said Myer Nussbaum was employed, pursuant to a contract in writing entered into between the receiver and Nussbaum, which contract was approved by the Attorney-General of this State. Said contract, by its terms, expired February 26, Í903. On February 26, 1903, a contract was entered into between said receiver and Myer Nussbaum, which provided “That the said Edward D. Candee, as such receiver, shall and' hereby does employ said Myer Nussbaum as his counsel, upon a compensation to be measured by the value of his services, payments thereon, if any, to be subject to the order of the Court in whole or in part, upon the final settlement of such receiver's accounts, payments thereon, however, to be made from time to time on account of such services as the same are performed and the payment thereof approved in writing by the Attorney-General.”
    On May 8, 1903, the Attorney-General wrote Myer Nussbaum as follows : “Referring to the matter of the agreement between your-' self, as attorney, and Edward D. Candee, as receiver, as provided by section 4 of Chapter 60 of the laws of 1902,1 enclose'herewith contracts for you to execute as of date February 26, 1903, the expiration of your old agreement.
    “ Please insert such sum as the receiver and yourself shall agree to be a fair, just and reasonable compensation for the period named. If you will then return the contracts to me, I will pass upon them, as provided by the statute, and if approved, I will return one copy to you for your files.
    “ Kindly furnish me with a brief recital as to what remains for counsel to do in this receivership, aside from preparing for the final accounting.
    “T would be pleased to have you give me such facts as were considered by yourself and the receiver in fixing your compensation.” The proposed contracts inclosed in said letter, among other things, provided : “ It is further mutually agreed that the value of the said services of the attorney is to be adjusted by the Court upon the final settlement of the accounts of the receiver, but that the amount shall not exceed-dollars. Partial payments may bé made to apply on-account of said services from time to time, providing the consent of the Attorney-General be first obtained, but that the aggregate of all said partial payments shall not exceed a sum equal to fifty (50$) per cent of the said maximum sum.
    “ It is also understood that all payments which may be made shall be subject to the order of the Court, in whole or in part, until the final settlement of the receiver’s accounts to the same extent as the accounts of general assignees are subject to revision and reduction, pursuant to section 4 of chapter 60 of the Laws of 1902 aforesaid.”
    Ho agreement was consummated between the Attorney-General, said receiver and Myer Hussbaum, his attorney and counsel, and thereafter the said written agreement of February 26, 1903, was presented to the Attorney-General for his approval, which approval was refused. An application was then made to the court for an order that a writ of peremptory mandamus issue out of the Supreme Court directing and commanding the Attorney-General to approve said contract. The court denied said application and from the order entered thereon this appeal is taken.
    
      Myer Wussbaum, for the appellant.
    
      John Gunneen, Attorney-General, and William U. Wood, for the respondent.
   Chase, J.:

Section 4 of chapter 60 of the Laws of 1902 provides as follows : , “ The receiver may employ not to exceed one counsel and may make such payment upon account for legal services during ijhe progress of the receivership as shall he just and proper, but no such payment on account shall be made to any counsel except upon the approval thereof in writing by the Attorney-General, and such payments shall be subject to the order of the court in whole or in part upon the final settlement of the receiver’s accounts to the same extent as the accounts of general assignees are subject to revision and allowance; but no compensation shall be allowed to an attorney for a receiver unless an agreement for his compensation has been made in writing, upon the approval of the Attorney-General. Additional counsel shall be employed only upon the written approval of the Attorney-General.”

It is urged by the appellant that the approval required from the - Attorney-General relates to the necessity of employing an attorney and counsel, and that if the necessity of employing an attorney and counsel is conceded, it is the duty of the Attorney-General to approve a contract of employment in' which compensation is provided for generally without in any way fixing or limiting the ■ amount thereof. We do not so read the statute. The statute expressly provides : “ The receiver may employ not to exceed one counsel.” There is no limitation upon ' such express power. The only express limitation on the employment of counsel is contained in the last sentence, namely, Additional counsel shall be.employed only upon the written approval of the Attorney-General.” ■

The statute was not enacted- for the purpose of affecting the selection by the receiver of one attorney and counsel., If the necessity of employing an attorney and counsel is conceded and an attorney and counsel is employed, except for the provisions of this statute such attorney and counsel would be entitled to reasonable compensation as a matter of law: An agreement for reasonable compensation ,is inferred in all ordinary contracts of employment. An approval, therefore, of the employment of an attorney and counsel in which agreement it is provided generally that he shall have compensation for his services Would be an idle ceremony. The section of the statute quoted relates to the amount of compensation to be paid to the attorney and counsel of the receiver. Two things are apparently sought by its provisions : (1) To limit the payments or account for legal services during the progress of the receivership to such as are approved in writing by the Attorney-General; (2) To prohibit the allowance of compensation to an attorney “unless an agreement for his compensation has been made in writing, upon the approval of the Attorney-General.”

" The duties of a receiver of a corporation frequently extend over a considerable period of time, and it has been the practice to obtain orders from time to time, authorizing payments bn account of legal services during the progress of the receivership. The allowance of such payments has been a frequent subject of discussion.

Whether this statute provides a way to aid the court in limiting the amount of payments on account of legal services prior to the final accounting of the receiver, or in correctly determining the aggregate amount of sueh compensation, is not now under consideration, but that the purpose of the act is to further restrict and control such payments and compensation cannot be doubted.

It is suggested that the statute is unconstitutional as interfering with the power of the Supreme Court. It may well be that the provision of the statute which wholly prohibits all compensation to an attorney properly and necessarily employed by the receiver, unless an agreement has been made in writing for his compensation upon the approval of the Attorney-General is an interference with the recognized power of the court. The question of the constitutionality of the statute is not necessary to the determination .of this appeal and we do not pass upon it in any way. If compensation cannot be made to an attorney and counsel of a receiver unless there is an agreement in writing approving of such compensation then the Attorney-General is vested with a discretion in regard to such approval which cannot be interfered with by peremptory mandamus at least upon the facts shown in this record. If the statute is a violation of the Constitution the appellant is in no position to ask the court to compel the Attorney-General to act under such void statute. _

The order should be affirmed, with ten dollars costs and disbursements.

All concurred; Smith, J., in result.

Order affirmed, with ten dollars costs and disbursements.  