50 N.Y.S. 954 | N.Y. Sup. Ct. | 1898
The first question, presented by the exception to the report of the referee, taken by the objecting creditors, relates to the allowance of a counsel fee of ¡$500 paid by the assignee (who is an attomey-at-law) to his counsel. An assignee for the benefit of creditors will not be allowed counsel fees paid for preparing schedules, or for general advice and consultations. Levy’s Accounting, 1 Abb. N. C. 182; Matter of Gomprecht, 13 Daly, 481; affirmed, 102 N. Y. 741; Matter of Ludeke, 22 Misc. Rep. 676. In Levy’s Accounting, supra, Judge Robinson, in passing upon this question, at p. 182, saidT “ In the ordinary performance of such duties, as an assignee for the benefit of creditors assumes, he at best engages for his own personal competency to perform them, and he cannot.involve the estate in the expense of employing counsel to advise him as to duties he has thus assumed, unless it were ¡shown that some unusual complications existed which rendered it reasonable and proper that professional advice should be. called in to extricate or alleviate the ¡affairs of the assigned estate from some anticipated complications. No such convenient rule exists as enables an assignee, at the expense of the estate, to retain a lawyer, as one among other employees that he may necessarily employ, for the purpose of affording him general advice as to his conduct, in his office as trustee. The special exigency and reasonable necessity for the incurring of any such expense in the execution of the trust must in all cases be shown.” And in the Matter of Johnson, 10 Daly, 123, 126, Chief Judge Charles P. Daly said: “ The court will recognize that the services of a lawyer ¡are necessary in drawing the formal papers that have to be presented to¡ the court in the different ¡stages of the proceedings, as they must be carefully prepared to comply with the provisions of the statute regulating voluntary assignments, and with the rules of the court. They are, in most cases, mere formal papers which do not require either much labor or any great professional skill in their preparation, involving little else than a due observance of the provisions of the statute and the rules of the court.” There was but one actionvbrought against the assignee, ¡and that was withdrawn. During the administration of the assigned estate questions arose which, to my mind, were complicated and justified the employment of counsel. Among these were: The claim of creditors for the value of merchandise which had passed to the assignee under the assignment; th'ei continuance of the business formerly conducted by the assignor; the
Ordered accordingly.