
    Simon Harburger et al., Plaintiffs, v. St. John’s African Methodist Episcopal Church et al., Defendants.
    (Supreme Court, Bangs Special Term for Motions,
    October, 1914.)
    Referee — fees of — in what amount entitled for making sale in foreclosure where property brought only small sum over prior incumbrances.
    Where property sold under the final judgment in foreclosure of a junior mortgage only brought a hundred dollars over prior incumbrances, the referee is only entitled to fees to the amount of nine dollars plus his expenses for making the sale.
    Stanley Holcomb Molleson, for plaintiff.
    William Watson, referee.
   Crane, J.

A question has arisen here as to the amount of the referee’s fees and charges for making the sale under the final judgment in foreclosure. The property sold for $100 over and above the prior incumbrance. It seems to be a prevalent belief that a referee is entitled to fifty dollars upon a sale, irrespective of the purchase price, but this is not so.

Section 3297 conforms the referee’s fees to the fees of the sheriff in all actions where real property is sold pursuant to a judgment.

Subdivision 11 of section 3307 makes the sheriff’s fees for a sale under a judgment the same as his fees for a sale under execution, which are fixed by subdivision 7 of section 3307, at three per cent, on the first $250 and two per cent, on the residue, except in New York, Kings and Westchester, where it is two and one-half per cent, on the first $250 and one and one-fourth per cent, upon the residue. To these fees must be added two dollars for advertising the property for sale and two dollars for drawing the deed unless paid by the grantee. Kant v. Bergman, 97 App. Div. 118, and reference to the Appeal Book.

By section 3297 and subdivision 7 of 3307 these fees for either the sheriff or the referee in foreclosure cases cannot exceed $50 except where the property is sold for $10,000 or over in which it cannot exceed $500.

Besides these fees which are allowed to the referee or sheriff upon the sale there is an additional amount which may be awarded in the way of commissions where the referee is required to take security upon a sale, or to distribute or apply or ascertain and report upon the distribution or application of any of the proceeds of the sale. This commission is one-half of those allowed by law to an executor or administrator for receiving and paying out money, that is, one-half of 5 per cent, upon the first $1,000, two' and one-half per cent, upon the next $10,000 and one per cent, upon the residue. Maher v. O’Connor, 1 Civ. Pro. 158; Code Civ. Pro. § 2753. Where the plaintiff bids in the property and the amount bid is applied to his claim these commissions cannot exceed $10.

The local laws applicable to Kings county (Laws of 1889, chap. 167, amending Laws of 1876, chap. 439) have been repealed by chapter 436 of the Laws of 1906.

As the mortgage to be foreclosed in this case was not a first mortgage the equity brought but a very small amount at the sale, the price being one hundred dollars over prior incumbrances. Applying the above percentages the referee gets two and one-half per cent, or two dollars and fifty cents plus two dollars for advertising and two dollars for the deed to which is to be added one-half of five per cent, for commissions, or two dollars and fifty cents, making nine dollars and his expenses.

Ordered accordingly.  