RICHARDS v. RICHARDS

RICHARDS v. RICHARDS. N. Y. Supreme Court, First Department; Chambers, November, 1875. Partition.—Reberee’s Pees and Commissions. A referee appointed to sell land decreed to be partitioned, is entitled to receive the same commissions on the price received for the land sold, as an executor would be. Motion to confirm report of referee appointed to ascertain the fees of a referee appointed to sell land decreed to be partitioned. This action was brought by' Robert G-. Richards, against Pierre T. C. Richards and others, for the partition of certain real estate in the city of New York, consisting of two houses and lots. By the final decree for partition, Bradbury C. Chetwood, Esq., was appointed referee to sell. He accordingly sold the property in February, 1875, and obtained for one house and lot $11,600, and for the other $9,000. The deed was to be given on March 13, 1875, and was tendered to the purchaser on that day, but owing to some other litigation between the parties, the day for closing the title was, adjourned several times until April 36, when, the parties having attended for that purpose, the referee demanded his fees, which were refused on the ground that they were too large. The referee then gave notice of an application to have his fees' taxed at $606. Upon the hearing of the motion for that purpose, George W. Wingate, Esq., was appointed a referee to ascertain the amount due. On November 9, 1875, he made the following report: The question in this case is whether there is any statute fixing the fees of referees in partition, and if so, at what rate the same should be computed. Chapter 569, Laws 1869, vol. 2, p. 1377, was passed for the purpose of settling questions of this description. It is entitled “An act in relation to the fees of the sheriff of the city and county of Hew York, and to the fees of referees in sales in partition cases,” and enacts: 1. That all sales in Hew York under judgments or decrees, except incases of partition, &c., shall be made solely by the sheriff. 2. In cases of sales on foreclosure the sheriff shall receive the following fees : For receiving order and posting notice of sale, . ... . . . $10 For attending sale, . . 10 Drawing each deed, . 5 Adjourning sale (3 times), 3 Report of sale, .... 5 Paying over surplus, besides disbursements. 3 3. That commitments by police justices should be directed to the sheriff. 4. That in case of sales in actions in partition by referees, they shall receive the same fees and disbursements as are allowed by section 2, to the sheriff, and in addition a commission on all moneys received and paid out by them at the same rate as executors, such commission not to exceed $500. This act was held unconstitutional, upon the ground that the two subjects of the fees of sheriff and of referees, provided for in sections 2 and 4, were alone re- | ferred to in the title; the subjects of the exclusive power [ of the sheriff to make sales, and of the police justices to ' make commitments, not being referred to therein. That ¡ the act was a local act embracing more than one subject, and that the exclusive right of the sheriff to sell was not expressed in the title, and that the act was therefore unconstitutional, so that a sale by a referee '■ as valid (Graskin v. Meek, 42 W. Y. 186, 188). By chapter 192 of Laws of 1874, section 1 of this act was amended so as to read as follows: “§ 1. Sales of real estate hereafter made in the city or county of New York, under the decree or judgment of any court, may be made by the sheriff of said city and county, or by a referee appointed for that purpose, by such judgment or decree; but when made by any. officer other than the sheriff, no greater sum shall be charged or allowed as fees than as prescribed in section two of this act.” And section 3 was repealed. As section 4, prescribing the fees of referees in partition, was not amended, the legal presumption is that it was intended to remain law. It conflicts, however, absolutely with section 1, as to the fees of officers other than the sheriff, unless it should be held that they relate to different subjects. And as the legislature cannot be considered to have intended a flat contradiction in the same act, it is but fair to presume that section 1 was intended to cover sales by referees in other than partition cases, which would be the same cases as those where the sheriff would sell (i. e., foreclosures, &c.). This is further demonstrated from the fact that section 1, as originally passed, did not include partition cases; and section 2 refers only to sheriff’s fees in foreclosures (See Innes v. Purcell, 2 8up'm. Ct. [T. & (7.] 543). The declaration by the court of appeals that the statute of 1869 was unconstitutional on account of sections 1 and 3 referring to subjects not alluded to in the title, did not avoid the entire act (People ex rel. Lee v. Supervisors of Chautauqua, 43 N. Y. 10; Town of Fishkill v. F. & B. Plank Road, Co., 22 Barb. 643 ; People v. Lawrence, 36 Id. 190, 191, affi’d in court of appeals, 41 N. Y. 137; and see cases as to tax levies, 2 Abb. JY. Y. Dig. 140). This is particularly the case, inasmuch as the provision as to the fees of referees in partition cases was not a local but a general law applicable to the entire State. The placing of a general law in a private bill saves the general law by making the act public (People ex rel. Lee v. Supervisors of Chautauqua, 43 If. T. 10; People v. McCann, 16 Id. 58, 60; Williams v. People, 24 Id. 405, 406). This view is in opposition to that expressed by the revisers of the new statutes ; but on the other hand it is sustained by Hoffman on Referees, 285. I am therefore of the opinion that the referee is entitled to receive, in addition to his disbursements (about which there is no dispute before me), the same commissions as an executor on the purchase price, $20,600, viz. 5 per cent, on $1,000, .’ . . . $50.00 21-2 “ “ 9,000, .... 225.00 • 1 “ “ 10,000, .... 106.00 $381.00 Receiving order and posting notice of sale, 10.00 Posting notice of re-sale, . . . 10.00 Attending sale, . . . .10.00 Drawing four deeds at $5.00, . . 20.00 “ report of sale, . . . 5.00 Paying over surplus, . . . . 3.00 $439.00 A motion was made for a confirmation of this report. E. Bartlett, for the motion. A. Roe (Roe & Macklin, attorneys), opposed. Followed in the next case; [MAJORITY — Lawrence, J.] Lawrence, J. After much hesitation I have concluded that the referee is right in his conclusions. The bill of Mr. Chetwood will therefore be allowed as reported by the referee, and he is also entitled. to the referee’s fees.