
    Mary A. Keim, Respondent, v. John B. Frank Keim and Others, Respondents. Pratt A. Brown, Referee, Appellant.
    
      Referee’s fees on a sale in partition, in the county of New York—his fees in other counties.
    
    The fees of a referee appointed, in a partition suit, to sell real property situated in the city and county of New York, in which county by a special act (Chap. 533' of the Laws of 1890) the sheriff is made a salaried officer and is required to turn over his fees to the county and is entitled to a return of-one-half of them, are—under section 3397 of the Code of Civil Procedure, providing that “ the fees of a referee appointed to sell real property pursuant to a judgment in an action shall be the same as those allowed to the sheriff ” ^-Ihe fees specified in section 3307 of said Code. ¡
    
      It seems, that, in a county where the sheriff’s fees are designated by .a special act. and he is not a salaried officer and is entitled to all of such fees, a referee appointed to sell real property in that county is entitled to the fees there specially designated. Rumsey, J., dissented.
    Appeal by Pratt A. Brown, referee, 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 7th. day of June, 1899, fixing his fees upon a sale in partition.
    
      Pratt A. Brown, for the appellant.
    
      H. T. Slosson, for the respondents.
   Barrett, J.:

The referee’s complaint is that the learned justice at Special Term adopted an erroneous method of- Computation with regard to his-fees.. Both sides agree that the fees are regulated by section 3297-of the Code of Civil Procedure. The material language of that section is this: The fees of a referee appointed to; sell' Teal property, pursuant to a judgment in an action, are the 'same as those allowed to the sheriff.” What was immediately contemplated by this is clear enough. The fees to which a sheriff was then entitled upon the sale 'of real property were’ distinctly specified in a later section of the same Code (§ 3307, subds. 7, 11). Under, this latter section sheriff’s fees varied somewhat in different localities. They were, however, the same in all the counties Of the State except New York, Kings and Westchester. In these three latter counties a diferent rate was provided. It seems quite clear, so far, that the referee’s fees correspondingly varied, and that section 3297 allowed to a referee appointed in any particular county the same fees as were then allowed to the sheriff of that county. The present question arises because of a special act passed in 1890 “ in relation to the office of the sheriff of the city and county of New York” (Chap. 523). Under that act the sheriff of the county of New York was made a salaried officer, and a radical change was made in the administration of the office. The fees collectible by the sheriff of the county of New York were revised and increased —in many respects doubled. The sheriff was required to account for these fees and pay them over into the treasury of the county; and the act provided that he “ shall be entitled to one-half of such fees,” to be paid to him upon the approval by the comptroller of his monthly accounts.

Under this special act the sheriff was authorized to collect as fees upon the sale of real property under an execution a larger percentage than he was theretofore allowed under section 3307 of the Code. The referee in the present case claims -that he is entitled to this increased percentage. The court below held otherwise, and limited him to the sheriff’s percentage specified in section 3307. We think it clear that if the increased percentage had been given to the sheriff by a simple amendment of this latter section, the referee’s fees would have kept pace therewith. The intention of the Legislature would not in that case have been questionable. The difficulty is, however, that the special act involves a complete change of system. Under the general act the sheriff was “ entitled ” to the fees for his services. Under the special act he is allowed a salary, and the city and county of New York is entitled to the fees for his services as its official. He is directed by the act (§ 17) to collect these fees and pay them over to the comptroller/ . As between the county and himself, he is “ entitled” to a return of' one-half of them. Such an act was notin any sense an amendment of the general act. What it did was to withdraw the particular locality from the area of the general act. No fees are “ allowed to the sheriff ” by this special act within the intent and meaning of that phrase as used in section 3297* It is impossible to adapt the latter section to the special act, as it would have been impossible harmoniously to engraft the special act upon section 3307. Practically what is now allowed to the sheriff in this county is a .salary and a claim uppn the county for one-hálf of the fees allowed to it. The legislative intent, as expressed in section 3297, could not have comprehended such changed conditions as these. It related to the general'System of sheriff’s fees then in'vogue^ 'as minutely provided for in section 3307. And it undoubtedly embraced later variations in the quantum óf those fees made by amendment to section 3307 or by an equivalent special act. But it certainly did not contemplate the adaptation of the referee’s fees, allowed by section 3297, to a. salaried system in which the fees became primarily the property of the county and are returned to the sheriff, inpcvrt, as ■ an incident to his salary.

We have said that the special act in question took the sheriff of the county of Sew York out of the area of the general act.. The . effect of this, however, was not to deprive referees. appointed' to sell real property in this county óf any fees. Section 3307 may-still be resorted to for the purpose of ascertaining the. proper allowance to a referee under section 3297. The former section nó longer governs as between litigants and the'sheriff, but the referee’s compensation may be computed thereon quite as .though the percentage specified therein had been literally embodied in section 3297. . It is those percentages which section 3297 gave to the referees; and those percentages stand until they are "taken away either" by some act directly'relating to referee’s fees, or by some act relating to .sheriff’s fees which can reasonably be brought within the original legislative purpose as that purpose was expressed when the ..Legislature said tEat the fees óf a referee should.be the same as those allbwed to the sheriff, The - Legislature has never said that the fees of a referee Should be the same as those allowed to the county.

The ordér appealed from should be affirmed, with ten dollars costs and disbursements of the appeal. ' ,

Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred; Rumsey, J., concurred,

except that- he was of opinion that the referee’s fees provided for in section 3297 could only^be varied By a direct amendment to section 3307 with regard to sheriff’s fees, and would not be affected by “ an equivalent special act.”

Order.affirmed,, with ten dollars costs and disbursements.  