105 Misc. 318 | N.Y. Sup. Ct. | 1918
The plaintiff moves for the confirmation of the referee’s report and for a direction that the receiver forthwith pay to him a sum of $858.17, the amount stated in said report to be the balance in the hands of the receiver, and in addition thereto the sum of $337.70, the amount of the disbursements of the plaintiff in connection with the two references which have been had herein, and the further sum of $500 as counsel fee to the attorneys for the plaintiff for their services in connection with the proceedings had herein to surcharge the receiver’s account, making a total claim of $1,695.87. So far as concerns the first branch of the motion, which seeks the confirmation of the referee’s report and a direction for the payment of the balance found by him to be in the receiver’s hands, I am of the opinion, after careful examination of the evidence, that the referee is right in his conclusion that the receiver’s account should be surcharged with the various sums mentioned in his report, amounting altogether to the sum of $696.58, except the surcharge of $60 paid by the receiver for counsel fees, as more specifically set forth in the eighth paragraph of the referee’s-report, which I think should be eliminated and the sum so paid credited to the receiver. The referee’s report in adverting to such services states “ that the necessity and reasonableness of these charges are beyond dispute, but their payment in advance of the allowance of the court must be at the receiver’s risk.” While it is true that the receiver did not first obtain permission of the court to employ counsel, the evidence shows that the exigencies under which the services were rendered were such as to justify the allowance of the expenditures made therefor in the exercise of a wise discretion. Niagara Life Ins. Co. v. Lincoln Mortgage Co., 175 App. Div. 415,
Ordered accordingly.