In re the General Assignment of Bostwick

Blanchard, J. This is an application to confirm the report of a referee to whom was referred the question of the allowance of the commissions of an assignee for the benefit of creditors and the allowance of taxable costs of the accounting proceeding. The referee has reported adversely to the allowance of both of these items. Previous to the reference of these questions the account had been referred to the same referee and his report thereon made and confirmed. "Upon the second reference the assignee was not allowed commissions because of the failure of the assignee to invest the funds in his hands and because his neglect so to do for six years “ resulted in a distinct loss to the assigned estate.” The only asset of the assigned estate realized upon by the assignee was a claim of $1,750, collected through his attorney, whose claim for services was allowed at $900, al [18] though considerably more was claimed. The learned referee says that “in stating the account of the assignee he was not charged with interest on funds in his hands, as he might properly and justly have been.” The fact remains, however, he was not so charged, and his accounts have been stated and have been confirmed by the court. It does not seem fair to deprive the assignee of his commissions, because something might have been charged against him which was not so charged. Although counsel have not called my attention to any authorities on the matter of the allowance or disallowance of commissions, I find that the court is justified in depriving an assignee of his commissions in certain extreme cases. Matter of Coffin, 10 Daly, 27; Matter of Danzig, 16 N. Y. St. Repr. 708; affd., 110 N. Y. 682; Matter of Wolf & Kahn, 1 N. Y. St. Repr. 273. It would seem, however, •that in these cases the conduct of the assignee was such as either to cause his removal' or to justify it. In the present case I do not think the1 failure to invest the sum which the referee found properly chargeable against the assignee would have been a sufficient ground for his removal by the court, nor do I think it sufficent cause for the disallowance, of his commissions. In the matter of the allowance of taxable costs I am likewise obliged to differ with the learned referee. He says: “ The case of Gins- „ berg, 9 Misc. Rep. 650, seems to be a sufficient authority for denying his claim for costs or counsél fees in this proceeding.” The case is sufficient authority for denying counsel fees, but not costs. It is stated at the foot of page 650 of the report of that ease that the court allowed taxable costs to the attorneys. The commissions will be allowed to the assignee as provided by statute and the taxable costs to the attorneys for the assignee. As thus modified, the motion to confirm the referee’s report is granted. Ordered accordingly*