
    DABY v. JACOT.
    N. Y. Supreme Court, Chambers, First Department;
    
    
      January, 1877.
    Partition.—Referee’s Fees and Commissions.
    The fees' of a referee to sell in partition cases are governed by the provisions of 2 L. 1869, p. 1877, c. 569, as amended by L. 1874, p. 212, c. 192.
    Richards v. Richards (p. 98 of this vol.) followed.
    Where fees on reference and disbursements for searches as to title were due from the plaintiff’s attorney to the referee subsequently appointed to sell in the same partition suit,—Held, that on an ad- ' justment of his fees and commissions for conducting the sale, his fees on the first reference, and the disbursements actually paid for searches, might also be allowed.
    Motion for adjustment of the fees and commissions; ■of a referee to sell lands decreed to be partitioned.
    Augustine W. Baby and Richard Jacot were the* owners of three adjoining houses and lots in the city of New York, known as Nos. 431, 435, and 437 West Sixteenth street.
    Susan Allen and Thomas Brown held mortgages to the amount of $15,600 on No. 437.
    In June, 1875, Baby commenced a suit against Jacot, Allen, Brown, and others, for the- partition of the property. While that suit was pending, and in August, 1875, the defendants Allen and Brown began a foreclosure of No. 437, and obtained a decree of foreclosure and sale in January, 1876, before a decree.of partition. Before any sale under the decree of foreclosure of No. 437, the'plaintiff in the partition suit obtained a stay in the foreclosure-proceedings.
    B. 0. Chetwood, Esq., having; been appointed a referee in the partition suit to ascertain the title of the plaintiff and the rights of the; several parties therein, reported in favor of a partition and sale of the property. He surrendered his report to the plaintiff’s attorney without receiving payment of his fees and disbursements for clerk’s and register’s searches. Upon a decree of partition and a sale, he was appointed referee to conduct the sale. He accordingly advertised the whole property for sale on May 12, 1875.
    On that day two of the houses were sold—the sale of the other, No. 427, being adjourned by order of the court. It was finally sold on June 22, following, and bid in for $17,000. The three houses together were bid in by the different mortgagees for $49,450. Ten per cent, of this amount was paid to the referee, the balance of the bids being credited on their mortgages. Allen and Brown, who bid in No. 427, paid $1,700 of this.
    The referee claimed that he should be authorized to retain out of the $1,700 which had been paid him by Allen and Brown, who purchased only one of the houses, the sum of $345 for commissions, as follows :
    5 per cent, on $1,000, : . . $50.00
    21-2 “ 9,000, ; . . 225.00
    1 . “ 7,000, . . . 70.00
    - $345.00
    Receiving order and posting first
    notice,.....$10.00
    Receiving order and posting second
    notice,.....10. Ó0
    Receiving order and posting third
    notice,.....10.00
    Receiving order and posting fourth
    notice,.....10.00
    Receiving order and posting fifth
    notice,.....10.00
    Receiving order and posting sixth notice, ... . . 10.00 '
    
      Six adjournments, at $3.00, . . $18.00 Paid auctioneer, . 103/00 Report of sale, . 5.00 Report of distribution, . 1-3 paid Daily Register, . 49.15 1-3 fees paid for searches, . 17.41 1-3 fee for first report, . . 83.33
    $335.89
    $680.89
    
      A. H. Wagner, for the defendants.
    
      Allen & Brown, opposed.
    I. The act of 1813, establishing and revising partition proceedings, provided that the costs and charges attending such proceedings should be first paid by the petitioner prosecuting the same, and each of the parties concerned were directed to pay their proportionate share of the costs, &c., to him, which was enforceable by execution (1 Laws of 1813, 507).
    II. The court uniformly assessed the fees of commissioners for partition at $3 a day under that act (8 Cow. 115; 2 Wend. 621). The Revised Statutes fixed the fees at $2 a day, and $1 for expenses.
    III. The rules for fees provided by law in civil actions should prevail. The fees of referees in all actions are fixed at $3 per day for each day necessarily employed in the reference, unless the parties otherwise agree (Code, § 313). No party in this action agreed to any other rate of compensation.
    IV. When the statute fixes a fee for services, there can be no discretion in the court as to the various items of service specified. The court has no authority to add items for services not specified in the statute (Downing v. Marshall, 37 N. Y. 380).
    V. The act of 1869 was designed to fix a more liberal scale for referees’ fees in partition cases (2 L. 1869, p. 1377, c. 569). Under this act, the referee would be entitled, for receiving order and posting notice of sale, to $10; for attending sale, to $10; for drawing deed, to $5; for three adjournments, to $9 ; for making report of sale, to $5 ; for auctioneer’s fees, to $12; the whole commissions in any one case not to exceed $500. The referee in fact disbursed less than $5,000, including the greater part of which he retained for fees, &c. The act does not provide that he must be allowed $500 in any one case, but it should not exceed $500,—thus leaving it to the court to fix a sum not exceeding that. Searches do not attach in any form to referees’ fees on a sale.
    VI. On the question of the constitutionality of 2 L. 1869, p. 1377, c. 569, counsel cited Gaskin v. Mack, 42 N. Y. 186 ; People v. McCann, 16 Id. 58 ; Crowell v. Lawrence, 41 Id. 139; People v. O’Brien, 38 Id. 193.
    VII. The fees of the referee must be adjusted by the court under the law of 1869 as amended by A. 1874, p. 212, c. 192. As the petitioners represent but one third of the action — one third of the property — they can only be required to pay one third of the fees.
    VIII. Whether the referee earned the fees on the first reference, which the attorney for the plaintiff in the partition suit was bound to pay on taking up the report, cannot be determined by himself on a second reference in the cause.
   Davis, P. J.

In Richards v. Richards, Mr. Justice

Lawbeitce held that the fees of a referee to sell in partition cases are governed by the provisions of chapter 569 of the Laws of 1869, as amended by chapter 192 of the Laws of 1874. I feel bound by that decision, without examining the question as an original one. The referee is entitled to have his fees taxed in accordance with the provisions of that act; which taxation will allow him the following items : [The learned judge here specified items, which see more fully stated in the order as settled, below:] including commissions on the moneys received and paid out, at the same rate as allowed to executors and administrators. The fees of the referee on the first reference might also be allowed, and the disbursements actually paid for searches. These must be adjusted by the order; order to be settled on two days’ notice.

Order.

In accordance with this decision the following order was settled:

That the referee be allowed for his fees, commissions and disbursements made and incurred by him on the sale of all of the property described in the judgment roll herein, and known as premises, Nos. 421, 425 and 427 West Sixteenth street, in the city of New York, the following sums, viz:
For receiving order and posting notice of sale,......$10.00
For attending sale, . . . .10.00
For drawing three deeds, . . . 15.00
For three adjournments, $3 each, . 9.00
For making two reports of sale, . 10.00
For auctioneer’s fees paid by purchasers, .....36.00
For printer’s bill advertising sale, . 66.48
For fees paid register for searches, . 10.85
For “ county clerk “ . . 17.10,
For “ U. S. circuit and district court clerks, ..... 13.75
For fees paid U. S. loan commissioners, 1.75
For his commissions on $49,450, the whole amount of sales in the action, as follows:
On the first, $1,000, at 5 per cent. ; $50.00
On the next 9,000, at 3 1-3 per cent. . . . $335.00
On the balance, $39,450, at 1 per cent. . . . 394.50
But limited by statute to the sum of $500.00
• amounting altogether to the sum of $699.93

The said referee is also allowed the sum of $350, as his fees, on the reference herein as to title, &c.

That the said referee retain said sums taxed and allowed, as aforesaid, out of the moneys received by him on the sales made under the judgment herein, and that he pay over to the persons who paid in the moneys received by him on the sales herein, the balance of the moneys due to them respectively after deducting the proportionate part or share of the fees, commissions and disbursements allowed by this order out of their said payments respectively, within five days after the service of a copy of this order on him.  