In re Bunch

12 Wend. 280 | N.Y. Sup. Ct. | 1835

By the Court,

Savage, Ch. J.

The objections to the taxation resolve themselves into two branches: 1. That the responsibilities that the trustees have come under, by reason of the prosecution of the writ of certiorari, are not a proper subject of charge against the debtor'; and 2. That, under the circumstances of this case, the trustees are not entitled, to commissions. Trustees appointed in cases of this kind are authorized, before making distribution of moneys which shall have come to their hands, to deduct all necessary disbursements made by them in the discharge of their duty. The trustees, in this case had the debtor examined before the judge; and being of opinion that they had been improperly restricted in their examination of him, they sued out a certiorari to have the decision of the judge reviewed by'this court: thus, if they have made no disbursements they have incurred responsibilities from which they are entitled to be relieved, provided, that in incurring such responsibilities, they acted in good faith. That they did act in good faith, we are bound to presume until the contrary be shown. The same principle applies to the ex-, penses incurred preparatory to the suing out of a writ of error.

The charges for counsel fees, also, were properly allowed. Trustees are authorized to employ counsel; and if their disbursements on that account are reasonable, they are entitled t0 retain such sums as have been paid. The objection here is to the principle, and not that the advances have not been made ; the payment itself is not disputed. A deduction of $30 was made by the taxing officer, which probably was made from the item of $50 for attendences before the judge on the examination of the debtor ; and, in my opinion, properly made. A trustee, who is a counsellor of this court, is not bound to yield gratuitously his professional services in the execution of his trust; if he renders services in that character, he is entitled to be paid the same as if rendered for another. This disposes of the first branch of the objections.

I have no doubt that the trustees in this case are entitled to commissions. The language of the act is, that trustees may deduct a commission at a certain rate per cent, on the whole sum which shall come to their hands; but it would be absurd to give to this provision a literal construction. The. meaning of the act is, that the trustees shall receive a commission upon such sum as shall be realized in consequence of the proceedings instituted ; and can there be a doubt but that the attaching creditor in this case received upwards of $19,000 in consequence of these proceedings ? It was in consideration of the creditor consenting to have the attachment discharged, that the bill of exchange was delivered to him. The right of the trustees, in a case like this, to commissions, is analogous to that of a sheriff to poundage upon an execution where, af-. ter levy and before sale, the parties compromise. Hildreth v. Ellice, 1 Caines’ R. 192. Besides, it would be grossly unjust, were it permitted to an attaching creditor, by a compromise with the debtor, to deprive the trustees of the only compensation provided for them in cases of this kind. The amount1 here is large, but it results from the rate per cent, allowed by the legislature; the court has no discretion in the matter. The mischief can be remedied only by legislative enactment; though it may not be amiss to remark, that the compensation of trustees in cases of this kind might well be graduated by the legislature upon a principle similar to that adopted in reference to executors and administrators. It was suggested on the argument, that for aught appearing, the bill of exchange drawn by the debtor was accepted by the house in Carthagena gratuitously, and not in consequence of the drawer having funds in the hands of the acceptors ; and consequently that the sum received by the.creditor was not realized from the property of the debtor. There is no force in this suggestion ; to give it weight, the fact should have been affirmatively shown, for the presumption of the law always is, that the acceptance of a bill is the admission of funds in the hands of the acceptor.

Upon the whole, I perceive no reason for interfering with the taxation, and the motion is accordingly denied.