Since this matter was referred, this court at special term has decided that there is no power to grant any allowance out of the fund to counsel for an assignee before his final accounting (Larremore, J. Matter of Youngs, Smith & Co.).
This decision is controlling, because the principle upon which the payments here asked for are urged, is substantially that there was employment of counsel by authority of the assignee (or by agreement of the assignment within the scope of his powers).
I shall have to- order that this application stand over until the final accounting.
Of coarse the assignee may make any payments he thinks proper, taking the responsibility for his action.
In the Matter of Youngs, &c. (N. Y. Common Pleas ; Special Term, November, 1878), Larremore, J., held that the court cannot grant an allowance or counsel fee to counsel for an assignee, except on an accounting. The assignee may, before accounting, make payments to counsel such as he deems necessary, subject to his obligation to show their necessity and reasonableness when he asks to be allowed for them on his accounting, as disbursements.