Utica Insurance v. Lynch

2 Barb. Ch. 573 | New York Court of Chancery | 1848

The Chancellor.

The objection that this court has no authority to correct the report of the master, without the consent of the parties who oppose the application, appears to be well taken. Where a mere error in calculation has occurred, the court, upon further directions, may direct the report to be amended, although no exceptions have been filed; and without sending it back to the master. But where, as in this case, the report has been followed by an order or decree of the court, for the payment of the balance as found due by the master, the report cannot be amended while the order or decree founded upon such report remains in full force. (Turner v. Turner, 1 Wils. Ch. Rep. 471 ; 1 Swans. Rep. 54, S. C.) And after the order of the chancellor, confirming the report and directing the payment of the money, has been affirmed by the appellate tribunal, he is not authorized to set aside or alter that order, as erroneous. The counsel for the receiver, however, consents that an order may be made for a deduction from the amount reported due, by the master, provided the errors on their side of the account are also corrected.

Those errors are in allowing to the petitioner counsel fees for an unsuccessful defence in the original suit, and upon an unnecessary appeal by him to the court for the correction of errors. That defence was not made by him in his character of receiver, but as one of the defendants in that suit merely. Neither was the appeal made by him in his capacity of receiver. And even if it had been, it would not have entitled him to charge the expenses of an unsuccessful appeal, upon a fund in his hands belonging to the respondents in such appeal. He should not, therefore, in the passing of his accounts as receiver in the cause, have been allowed the $50 paid to Mr. Butler as his counsel m the Original cause, nor the $100 paid to Mr. Reynolds upon the argument of the appeal. These two sums, with interest on the first from December' 31st, 1836, and on the last from the same day and month in the next year thereafter, down to the 20th of April, 1847, the date of the master’s certificate annexed to the petition in this matter, must be deducted from the $274,80 mentioned in that certificate. And the balance, with interest thereon from the last .mentioned date, must be allowed to the petitioner; towards the principal and interest still due from him, under the order of the 15th of April, 1845.

The receivers offered to have the errors corrected, upon equitable principles, before this application was made. The petitioner must therefore pay to them, or their solicitor, the taxable costs of opposing this- application.