
    Race, respondent, v. Dada, appellant.
    
      (Court of Appeals,
    
    
      Filed April 27, 1886.)
    
    1. Reference—Rees of referee appointed to sell real estate—Code
    of Civil Procedure, § 3297.
    Where a referee is appointed to sell real estate and the court does not make its own distribution of the proceeds of the sale, but imposes such duty on the referee, leaving him to bear the responsibility of a correct and proper distribution to the parties entitled, an added commission is given, as authorized by section 3297, Code of Civil Procedure.
    2. Same—Referee entitled to fee for drawing deed.
    The fee for drawing the referee’s deed is chargeable to the grantee.
    Appeal from an order of the general term of the supreme court, fourth department, affirming a special term order made and entered July 7, 1883, directing a referee in partition to correct and amend his report by striking out certain items of fees charged by him.
    
      S. N. Dada, pro se.
    
    
      
      George B. Warner, for respondent.
   Finch, J.

This appeal turns upon the construction of section 3297 of the Code of Civil procedure, which has been phrased so differently from the enactments upon which it was founded as to make its real meaning doubtful and debateable. It gives to a referee appointed by the court to sell real estate, in addition to the fees allowed a sheriff for the same service, a commission where he “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 sale.” Where a sheriff is appointed to make such a sale, he is entitled to receive, in most of the counties of the state, three per cent upon the first $250, and two per cent upon the balance of the proceeds, besides a fee for advertising and making the conveyance, and his printing disbursements. Section 3307. But if a referee is appointed to do the same service, he is allowed the full compensation of the sheriff, and .a liberal commission besides. Why this should be so is not very apparent-, and the seeming injustice of the rule has led the courts below to a construction that paying over the proceeds to the parties entitled, or applying them upon outstanding incumbrances in pursuance of a decree which makes that duty purely ministerial, and therefore as capable of performance by a sheriff as a referee, does not entitle the latter to the additional compensation. But it must be conceded that, in the ordinary use of language, a payment of the proceeds to the parties entitled, in accordance with their respective rights, is a “distribution” of such proceeds, anda payment upon incumbrances “applies” the sum paid thereon, so that the referee in the present case stands within the letter of the provision. There is no difficulty in construing the section according to its terms, nor any need of clothing them with an unexpressed meaning. The statute gives to a referee additional compensation when he is required to do certain things, one of which is to distribute or apply the proceeds in accordance with the decree. The court may, in a given case, require the referee to make the sale and pay the proceeds into court. In some instances that is the proper order to make (§§ 1563, 1568, 1570), and in such case the court distributes or applies the fund for itself. In that event the referee earns no commissions. But where the court does not make its own distributions of the proceeds, and imposes that duty on the referee, leaving him to bear the responsibility of a correct and proper distribution to the parties entitled, an added commission is given. Nor is this quite so unjust as it seems. Ordinarily .the distribution is a very simple matter. The decree serves as an absolute guide, and may be obeyed by a sheriff without professional skin. In such a case the obvious duty of the court is to appoint the sheriff to make the sale, and not add to the expenses of the parties by insisting upon the needless luxury of a referee; and where such is the character of the distribution, we must assume that the sheriff win be appointed. But aU distributions guided by the decree are not equaUy simple or free from difficulties. Some of them are quite complicated, involving unusual calculations, and an ability to accurately understand the details of the judgment rendered. In such a case it may be wise and prudent not to commit the duty to a sheriff, but impose it upon some referee possessing the requisite skiU and abihty, and when that is done it is not unreasonable to allow for the service a larger sum than would be given to a sheriff.

The construction of the court below labors under the serious difficulty that no case can easily be imagined in which the added compensation would be earned upon a distribution. The court must solve all questions, and determine fully the rights of the parties, and no room is ordinarily left for any action except implicit obedience to the decree rendered. It is quite true that the provision of the code is capable of great abuse, and it is possible that referees are appointed to make sales when the more economical process of appointing the sheriff should be the one adopted; but if any such habit prevails, it maybe easily corrected, and no careless exercise of the discretion conferred is to be assumed. In this case the referee was entitled to the commissions which the courts have withheld. They decided correctly that the fee for drawing the deed was chargeable to the grantee.

So much of the order of the general term as denies the right to commissions is reversed, without costs to either party as against the other.

All concur, except Rttger, O. J., and Miller, J., not voting.  