Dime Sav. Bank v. Pettit

McADAM, J. The referee is not entitled, under section 3297 of the Code, to additional compensation on a sale of real estate on foreclosure unless he has actually received and is accountable for $10,000 or more in cash. Hosmer v. Gans, 14 Misc. Rep. 229, 35 N. Y. Supp. 471; Insurance Co. v. Bendheim (May 20, 1898) 59 N. Y. Supp. 793. In this case the property was sold for $110,000, and bought in by the plaintiff, leaving a deficiency of. about $13,000. The plaintiff waived the payment of the 10 per cent., so that the referee has re-' ceived nothing. Clearly, extra compensation ■ cannot be demanded here. The statute fixes the referee’s fees at a sum not to exceed $50 in cases where the property is sold for less than $10,000. Code, § 3297. The provision that, where the property sells for $10,000 or upwards, “the referee máy receive such additional compensation as to the -court may seem proper,” not to exceed $500, applies only to cases which' are exceptional and unusual, in which the referee has had more than •the ordinary amount of labor, and was-never intended to apply to every case where the sum realized is more than $10,000. Such a construction would be absurd. There would be no need of leaving-the matter to the discretion of the court, because there would be nothing but the amount realized to base a discretion upon. The rule is not-an arbitrary, but an equitable, one; intended to meet cases in which" it is evident to the court that $50 is inadequate. From the number of applicants for such references, it is very safe to assume that the majority are satisfied with $50. Motion denied, without costs.