117 N.Y.S. 796 | N.Y. App. Div. | 1909
Lead Opinion
The plaintiffs, as trustees for the mortgage bondholders, obtained a judgment for the sale of the mortgaged premises and directing the proceeds of sale to be applied to the costs of the action, and that the' referee retain, subject to the further order of the court, the amount stated to be due upon the mortgage, and that he pay the surplus, if any, to the county treasurer. The judgment further provided that the plaintiffs, the referee, or any interested party, after the confirmation of the sale, may at the foot of the judgment apply for such further order or supplemental judgment as may be proper for the purpose of ascertaining the holders of the various bonds and coupons and the amount due to each thereon, and for such further order as may be necessary and proper. There was allowed to the plaintiffs by the judgment in the action an additional allowance of costs of $750. After the costs were paid, the sale confirmed and the proceeds were in the hands of the referee, the plaintiffs, as trustees for the bondholders, applied upon the foot of the judgment for an order of reference to have it determined who the bondholders were and the amount due to each respectively. A referee was appointed, the hearing had and the amount due the respective bondholders ascertained, and upon the application for distribution of the funds among the bondholders, the plaintiffs asked an allowance of costs for the services performed by their attor
- We may assume without further consideration that the statement •made by counsel upon both sides on the argument that when the order of confirmation of sale was made and the proceeds of sale received by the referee, and the balance held by him for distribution among the bondholders, the services of the plaintiffs’ attorney in the action had terminated, and that they or the' plaintiffs were not required to do any other act on. account of the costs and allowances which had been made them in the action, or on account of their relations to the action. The various bondholders were not parties to the action, and the proceeding taken to determine who they were and the amount of their respective claims was not a proceeding between'the parties to that action, but was'in fact instituted by the trustees for the purpose of ascertaining to whom the distribu
The mortgage foreclosed provided that the proceeds of sale should be applied “To the payment of the costs and expenses of such sale or sales, including a reasonable compensation to such trustees, their agents, attorneys and counsel.” By the judgment of foreclosure, the trustees were allowed $100 for their services, but the allowance to them and to their attorneys in that judgment did not include compensation for services which might be rendered in ascertaining to whom the money in court should be distributed, as it was not known that the application would be.made by the plaintiffs or their attorneys, and the same could be made by any party in interest. If made by the plaintiffs, they were at least entitled to the same treatment as would be accorded to any other person who rendered the service. It is clear, therefore, that the allowance made in the judgment of foreclosure did not cover the services which have since been rendered in distributing the moneys in the hands óf the court. Where moneys are in the hands of the court for distribution among unknown owners, the expenses incurred in ascertaining who the owners are and providing for a proper distribution among them is a proper charge upon such moneys; and the court, when distributing money, may grant proper compensation for services necessarily rendered in such distribution. The denial of the motion upon the ground of the want of power was, therefore, erroneous, and the order should be reversed and the matter remitted to the Special Term for further consideration.
All concurred; Ooóhrane, J., concurring in result in memorandum, in which Chester, J., concurred.
Concurrence Opinion
(concurring):
I concur in the result on the ground that independently of statutory provisions the court has inherent power to make an allowance to
Chester, J., concurred.
Order reversed, with ten dollars costs and disbursements, and matter remitted to the Special Term for further consideration.