SUPREME COURT.

#### Walbridge agt. James.

*Beferees*— *amount they a/t'e entitled to demand and home on mahing sale of premises under a deoree of foreclosure.*

A referee appointed to sell in a foreclosure action is entitled to the same fees and percentage (commissions) as might be taxed for the same services had they been performed by the sheriff, not exceeding in the aggregate fifty dollars.

Where there were three sales of the mortgaged premises, all of which it appears were regularly made, the last one only having been consummated by the delivery of the deed, twenty-five per cent of the purchase-money being paid in on each of the first two sales, both of which fell through; on the third sale, the premises were struck off and sold for $5,700 cash, and the title passed; the defendant took the benefit of the purchase, and had the benefit of the moneys paid in on the prior sales, he agreeing to pay and satisfy the referee’s fees and expenses:

*Held,*that the referee was entitled to fifty dollars for the third and consummated sale, inasmuch as the taxable fees and percentage, or legal commissions on the sale alone would amount to the full sum of fifty dollars. He is not entitled to commissions on the first two sales. He can have commissions only on such moneys as were actually or constructively received and paid over under the decree. For making the two ineffectual sales, the referee is entitled to two dollars and fifty cents each, *i.*e., for receiving and entering the decree in his book, fifty cents; advertising the property for sale, two dollars; in all fifty-five dollars *{Per*Bocees, J.).

Where a resale is had on the failure of the purchaser to complete his purchase, the costs of the resale are properly to be deducted from the deposit (made by the purchaser). Therefore the referee could retain his fees (including commissions), from that deposit, in each of the sales not completed, and as the defendant was, by the agreement, to pay all the referee’s fees, &c., he was liable for these *{Per*Learned, J.).

There was but one sale *made;*the others were not perfected, and the fees should be fifty dollars, as ,the extreme limit of the law of 1876 *{Per*Boardman, J.),

*186
      *Third Department, General Term,*

*November,*1878.

*Before*Learned, *P. J.,*Boardman *and*Bockes, *JJ.*

Bockes, J.

The question presented by this appeal is as to the amount which a referee is entitled to demand and have on making sale of premises under a decree of foreclosure.

In this case there were three sales of the mortgaged premises, all of which it appeal’s were regularly made, the last one only having been consummated by the delivery of the deed. The causes which rendered the first two of them ineffectual it is useless here to state. Twenty-five per' cent of the purchase-money was paid in on each of the first two sales, both of which, as. above stated, fell through. On the third sale the premises were struck off and sold for $5,700 cash and the title passed. It seems that Hr. James took the benefit of the purchase and, as is understood, had the benefit of the moneys paid, in on the prior sales, he agreeing to pay and satisfy the referee’s fees and expenses.

Briefly stated, the case stands the same as-if Hr. James had been the purchaser at each sale with a liability to pay and satisfy the proper and legal expenses of those sales, that is, what in law the- referee was entitled to demand and receive for conducting them.

Ho question is here made as to the allowance for disbursements. The learned judge at special term held that the referee was entitled to ten dollars fees and twenty dollars commissions on each sale, amounting to ninety dollars in all. These allowances are challenged by the appellant James, who insists that a sum not exceeding ten dollars in all Was allowar ble. The special term held that the referee was entitled to the same fees and commissions as the sheriff would have been entitled to had he made the Sale, to wit, a sum for fees not exceeding ten dollars *(Laws of*1847, *chap.*280, *sec.*77; 3 *R. S.,*222, *sec.*93 *[sixth edition]),*and commissions not exceeding twenty dollars in the aggregate *(Delevan*agt. *Payne, 8 Paige,*
      *187459), and that he was entitled to these allowances on each sale. It is probable that the attention of the special term was not called to the provision in the act of 1876 hereafter to be considered.

There is no statute declaring in terms the items allowed to a referee who makes a sale under a decree in foreclosure; but it has been decided at general term that, by analogy, his services being the same as those of a sheriff in the same class of eases, he should have the same fees, with the limitation as to gross amount declared by law. This was held in *Innes*agt. *Purcell*(2 *N. Y. Sup. Ct. Rep. [T. &*C.], 538). In this case judge Daniels collated the provisions of the law then applicable to the question, and reached the conclusion, on a clear line of reasoning, that the measure of compensation for similar sSrvices by a sheriff and referee, in making a sale under a- decree of foreclosure, was the same, and it was there decided that a referee was entitled to fees, to be .taxed at the same rates as were allowed to a sheriff for performing the same services. With this conclusion we are satisfied. Then what fees would the sheriff have been entitled to had he performed the services here performed by the referee ? Since the decision in the case of *Innes*agt. *Purcell (supra)*a hew statute has been enacted bearing on the question under consideration *(Laws of*1876, *chap.*431, *sec.*11, *making am amendment of sec.*309 *of the Code of Procedure).*It is there provided that “ no greater sum than fifty dollars shall be charged by, or allowed to, any sheriff, referee or other officer, for his *fees, percentage or services,*for any sale under a decree or judgment of foreclosure.” This provision was in force when the sales in this case were had. Thus the limitation then and now stands at fifty dollars, instead of ten dollars fixed by the former statute, but it expressly covers both fees and percentage. How, in the case in hand, the referee was entitled to the same fees and percentage (commissions) as might be taxed for the same services had they been performed by the sheriff, *188not exceeding in the aggregate fifty dollars. Thus it seems that in this case the referee was clearly entitled, according to the decision in *Innes*agt. Purcell, and under the limitation fixed by the act of 1876, above cited, to fifty dollars for the third and consummated sale, inasmuch as the taxable fees and percentage or legal commissions on that sale alone would amount to the full sum of. fifty dollars. But we are of the opinion that he can have commissions only on the consummated sale. He can have commissions only on such moneys as were actually or constructively received and paid over under the-decree. The sum thus made from the sale is deemed to be the sum collected, and' it is on that sum that his right to commissions attach. The twenty-five per cent paid in on the first two sales became, in this case, part of the $5,700 ultimately paid on the consummated sale. This latter sum was all that was ever made under the decree. The fact that one referee was substituted for another during the.progress of executing the decree in this' case, does not at all affect the question before us. There were, however, services performed by the referee on those first- two sales for which he was entitled to compensation, the same as if he had been^sheriff. It is supposed he was in effect as regards fees and commissions performing the duties of the sheriff in executing a judgment. Then let us suppose that instead of a decree of sale, he had held, as sheriff, an execution, and had performed the services thereunder which were performed in making the two ineffectual sales, what were the items of service for which the law would allow him compensation ? Those fees would have been as follows: For receiving and entering the decree in his book, in analogy to entering an execution, fifty cents; advertising the property for sale,- two dollars. Perhaps there may be some other item or items of fees given by some statute, which has escaped our observation. Mileage is not allowable, for there is no such service to be performed in the class of cases under consideration. *Nor*ban any allowance be here *189made for a report of sale on either of the two ineffectual sales on the hypothesis that the report of sale takes the place of a sheriff’s certificate of sale, for no report of sale was made on either of those sales, nor for a deed to the purchaser, for no deed was givep until given pursuant to the last and consummated sale. Besides, the provision as to the sheriff is that the fee for the deed is to be paid by the grantee. Thus, it seems, there is the sum of two dollars and fifty cents allowable against Mr. James on each of the two ineffectual sales, inasmuch as these fees were for services actually rendered, for which, under the circumstances of the case, he became liable. Then, it seems, the referee in this case was entitled to fifty-five dollars, and the order of the special term should be modified accordingly. But neither party should have costs either at special term or on the appeal. Jt should be here added, perhaps, that the decision in *Richards*agt. *Richards*(21 *Sup. Ct. Rep.*[14 *Hun],*25) is made, with reference to the special statute, applicable to the city and county of New York.

Order of special term modified so as to make the allowance to the referee fifty-five dollars, but without costs of the special term or of the appeal.

Learned, *P. J.*

Where a resale is had on the failure of the purchaser to complete his purchase, I suppose the costs of the resale are properly to be deducted from the deposit made by the purchaser. Therefore the referee could retain his fees (including commissions) from that deposit in each of the sales not completed. As the defendant was, by the agreement, to pay all the referee’s fees, &c., I think he was liable for these, as I assume that the referee did not deduct them from thd amount of the deposits made on the sales.

Boardman, J.

I think there was' but one sale made/ the- others were not perfected, and that the fees should be fifty dollars as the extreme limit of the laws of 18J6.