In re WENDEL

In re WENDEL. (District Court, E. D. Pennsylvania. April 2, 1907.) No. 2,407. Bankbuftcy— Sale, of Mortgaged Property — Allowance of Attorney’s Fee to Mortgagee. Under the settled rule of practice in Pennsylvania an attorney’s commission, stipulated for in a bond and mortgage in case of foreclosure, is subject to the control of the court, which may reduce the amount of such commission in its discretion, and such rule will be followed by a court of bankruptcy in that state, and, where the mortgaged property has been sold by the trustee in bankruptcy, under its order, the mortgagee will be allowed such part of the commission as will fairly compensate his 'attorney for the services actually rendered in the matter. In Bankruptcy. On certificate from referee. W. W. Franklin, for bankrupt. Harnish & Harnish, for claimants. [MAJORITY — J. B. McPHERSON, District Judge.] J. B. McPHERSON, District Judge. In disallowing the whole claim of the mortgagee to be allowed the attorney’s commission of 5 per cent, stipulated for in the mortgage and the accompanying bond, I think the referee overlooked the well-settled rule in Pennsylvania practice that subjects the amount of such commission to the control of the court, by whom it may be reduced to such sum as appears to be an adequate compensation for the labor that has actually beep performed. Daly v. Maitland, 88 Pa. 384, 32 Am. Rep. 457; Wilson v. Ott, 173 Pa. 253, 34 Atl. 23, 51 Am. St. Rep. 767. I agree with the referee that the whole sum should not be allowed. Much of the work that would otherwise have fallen to the attorney for the mortgagee ivas performed by the bankrupt’s trustee, acting under an order of ^ale issued by the court, but some labor was certainly performed iri a proper effort to collect the debt before the final order of sale v as awarded, and for this I think an allowance ought to be made. The order disallowing the whole of the commission must therefore be set aside, with direction to the referee to award the sum of '$50 to the mortgagee on account of the commissions provided for in the moijrt-gage and judgment bond. j