53 How. Pr. 441 | New York Court of Common Pleas | 1877
The present motion is made upon the report of Stephen H. Olin, referee, appointed under an order dated May 25, 1877, whereby the accounts of said William L. Scott, assignee of Kenyon, Cox & Co., and also the account of David Dows as special trustee, and the vouchers, were referred to him to take and state the same.
The proceeding for such accounting originated upon the petition of John F. Tracy, a creditor of the assignors, to the extent of some $134. Upon the return of that application, the assignee obtained an order for a final accounting and the issuing of a citation to the creditors, and on proof of due service upon the creditors personally, or by publication on the return day, the order of reference to Mr. Olin was made.
The referee proceeded to take and state the accounts as required by the order of reference, and as authorized by the amendment to section 4 of the act of 1860 (chap., 348), as made by chapter 56 of Laws of 1875. ISTo objection is now made by any creditor to the proceedings- of the assignee, or to any item of such statement of their said accounts, as thus settled by the referee. Pending the proceedings before the referee commenced under the act of 1860 and its amendments, the act of June 16, 1867 (chap. 466), repealing and superseding it had gone into effect, by section 28 of which any proceeding thereafter had or- pending under the previous acts was to be continued under its provisions. Otherwise, as a repeal of the former act, it went into immediate effect. It constituted this court (sec. 25), in respect to such assignments, a court of general jurisdiction, affirming and continuing (sec. 20, sub. 3) the power to appoint a referee to take and state an account of the assignee. Whatever matter that officer has assumed to consider, or to suggest for the consideration of the court beyond taking and stating the account of the assignee, as to receipts and disbursements actually made by him, and his settlements of commissions as established by law (none other having been referred to him), was in excess of any power conferred upon him; and any additional suggestions made by him are entitled to respectful consideration as emanating from one in whom confidence had been placed by the court. Such, however, as are contained in his report, and which the counsel for the petitioning creditor and of the assignee submit for approval in a proposed order or decree, contain some matters that occasion serious ground for question as to the propriety of their recognition. First, that the counsel for the petitioning creditor, to whom less than $150 was due, should be paid $400 for his services in this matter; second, that
Had the assignee been derelict in his duty, or unconscientiously disputed the debt, some equitable ground would have existed upon which a claim might be made for awarding to the successful litigant counsel fees and costs, either personally against the assignee or out of the trust funds. The proceeding he instituted is styled “ special,” and no costs or rate of counsel fee is provided by law otherwise than on a'n allowance of such taxable costs or allowances as are prescribed by
The court cannot otherwise’ speculate as to what allowances should be made for counsel fees on any vague principles arising out of any supposed “ quantum meruit; ” and no costs or counsel fees are prescribed by the Code for mere service of a petition and order to show cause. ■ This claim, made on behalf of the petitioning creditor, must be denied.
As to the claims made on behalf of Mr. Dows, the special assignee, of $6,000 instead of $3,820.50, his legal commissions, and of Mr. Scott, the general assignee, to $40,000 instead of $11,392.91, they must also be denied.
There is no provision or principle of law that permits any increase of their allowances beyond the statutory compensation made to executors and administrators. The law so far condemns such extra allowances to assignees ■ for the benefit of creditors that an authority in the assignment to return them would render it void as to dissenting creditors. The acceptance of the execution of a trust, in cases where no fee or compensation is allowed by law, is ^gratuitous.” “A trustee may not profit by his trust” (Robinson agt. Pell, 3 Pr. Wm., 132). Prima facie, and under the most favorable decisions of our courts, he becomes entitled only to such compensation as is allowed to executors and administrators (Meacham agt. Stearns, 9 Paige, 398; Duffy agt. Duncan, 35 N. Y., 187; Ogden agt. Murray, 39 id., 202); he is not entitled to compensation for personal trouble or loss of time (Brockshop agt. Barns, 5 Mad., 90), and, “ in general, his position is honorary and a burden upon his honor and conscience, and not one assumed upon mercenary views (Ayliffe agt. Murray, 2 Atk., 58; Green agt. Winter, 1 John. Ch., 37). Although
• The simple employment of such officers of the law, to aid an assignee having a million dollars to administer, does not necessarily, or by any just deduction from the magnitude of the sum, entitle them to any increased co mpensation for their services* beyond what might be allowed to a like employment of a clerk or other assistant, or to any such engagement where the fund was small in amount. The service rendered is to be remunerated according to a fair and reasonable estimate, as in any other ordinary cases of employment, and the amount can have no just dependence for its estimate of value upon the extent or character of the fund' to be administered.
The employment in matters involving large sums, confer no right to any “ honorarium, ” or gratuity, but is to be compensated for, upon legal evidence-of such proper compensation as is due to the particular service.
. The character and quality of professional skill that the necessity of the case requires to be employed and its general values, are to be considered.
The proceeding for the settlement of an account of an assignee partakes of nothing of a recondite or intricate character. It is One that in the ordinary course of proceeding is more mechanical than professional, and does not exact any higher degree of professional skill than may be expected in a respectable clerk or a mere tyro in the profession, unless some questions of intricacy and legal difficulty .arise. In every case it undoubtedly needs the supervision of one acquainted, to some degree., with ordinary legal principles, and when objections are interposed or controversies arise, the aid of counsel may be both proper and necessary.
In such cases the claim, on the part of the trustee to an allowance, is not one addressed to the mere discretion or arbi
The necessity for the incurring of any expense by a trustee is ordinarily dependent upon the question whether it was one for which a prudent man would have occasion to become liable in the management of his own affairs. Except the documentary evidence afforded by accounts that have been prepared and settled, the papers and petitions used in the course of this proceeding furnish no satisfactory evidence tending to establish what would be a reasonable charge to be made by the attorneys and counsel of the assignee for their services upon the accounting, and the deposition of Mr. Andrews is entirely unsatisfactory as evidence to establish that any such sum as $10,000 was just or fair as compensation therefor, or to enable the court to fix it in any other sum. The largeness of the amount received and disbursed or held for disbursement by the trustee furnishes the court with no such data, nor any basis for any allowance of any greater sum than such as might be awarded upon the most ordinary accounting. The care and management necessary to the complete administration and distribution of a large fund is legally compensated in the .increased commissions to the trustee, but in the employ
The value of the advice of counsel as to the proper mode of protesting a foreign bill of $10,000 is not greater than as to one of $1,000, nor are the services of one of pre-eminent public reputation greater than those of the humblest member of the profession, who is possessed of the learning, skill, and ability required by the occasion, and which is necessary and proper for judicious and successful action. For illustration, a blacksmith may chance to successfully cut off a limb, but such use of his skill cannot compare in value with that of a surgeon learned and skilled in the knowledge of every art and artifice which would insure precise and safe action in such operation.
Flor would the most eminent mechanical engineer, if he condescended to repair a watch, be entitled to any greater compensation therefor than any skillful watch repairer.
These allusions to principles, upon which the skill and ability of one employed to perform a service is to be compensated, are referred to simply by reason of the large sums involved in these proceedings; the resdectability and eminence of the attorneys and counsel who have been engaged by the assignee to supervise his accounts, and a lack of what I regard to be the principles upon which the value of their services therein should be estimated in the allowance of the sum of $10,000, reported as one proper to be paid therefor out of the trust fund. The case, in this respect, must be again sent back to a referee, and (as Mr. Olin is absent from the country) I direct a reference to the Hon. Joseph S. Bosworth, requiring, first, a presentation to him of a particular and detailed statement of the services rendered by the attorney and counsellor the assignee of their services on this accounting for which such compensation is claimed, and any proof they may offer in support thereof; and, also, that the referee cite, or cause to be
Any allowances to the petitioning creditor and to the special and'general assignee,' beyond the legal commission of said assignees upon the rates granted executors and administrators, are denied.