Hirsch v. Peekskill Ranch, Inc.

In an action to foreclose a mortgage, plaintiffs appeal from an order of the Supreme Court, Westchester County (Wood, J.), dated July 21,1983, which fixed the receiver’s commission at $2,000. 11 Order reversed, with costs, and matter remitted to Special Term for further proceedings consistent herewith. 11A receiver is entitled to commissions not exceeding 5% of the sums received and disbursed by him (CPLR 8004, subd [a]). This 5% statutory commission is the maximum amount payable to a receiver (Caso v 323 Edgecombe Realty Corp., 25 AD2d 637; Siegel v Bromanbro Realty Corp., 23 AD2d 634; City of New York v Big Six Towers, 59 Mise 2d 839; 8 Weinstein-Korn-Miller, NY Civ Prac, par 8004.01). H However, in addition to the statutory commission, a receiver is entitled to be reimbursed for expenditures made by him which are necessary to preserve the receivership property and which are authorized by the order appointing him (City of New York vBig Six Towers, supra; Beirne v Habel, 20 AD2d 891; 8 Weinstein-KornMiller, NY Civ Prac, par 8004.04). H Because the commission fixed by Special Term exceeded that permitted by the statute (CPLR 8004, subd [a]), the order appealed from must be reversed, and the matter remitted to Special Term for a new determination in accordance with the foregoing principles. The receiver should be given an opportunity to present any claims for necessary expenditures for which he is entitled to reimbursement. Mollen, P. J., Thompson, Rubin and Lawrence, JJ., concur.