Opinion
May 2, 1941.
Appeal from Supreme Court, New York County.
Present — Martin, P.J., O'Malley, Townley, Glennon and Untermyer, JJ.
The defendant has appealed from an order entered in the above-entitled action on September 30, 1940, in which the receiver was awarded a further sum of $1,000 as and for the balance of his commissions, and his attorney the sum of $750 for his fees for the services rendered by him from March 15, 1937, to September 30, 1940. By a prior order of the court at Special Term, the receiver was allowed commissions in the sum of $500 on account and an allowance of $4,000 was made to his attorney. According to the account, this sum of $4,000 was paid to the attorney for the receiver on March 29, 1937. This court reduced the allowance to the attorney to the sum of $2,500. ( Ferguson v. Ferguson, 259 App. Div. 998.) It appears from the present record that the excess, to wit, $1,500, has not been refunded by the attorney to the receiver. No reason has been assigned by the receiver for his failure to obtain the repayment.
Under the circumstances, no additional allowance should have been made to the receiver or his attorney. The order reducing the allowance was entered by this court during the June term, 1940. It would be advisable for the attorney for the receiver to repay the excess without further delay.
Accordingly, the order in so far as appealed from should be reversed, with twenty dollars costs and disbursements, and the matter of the final accounting of the receiver remitted to Special Term.
Order, so far as appealed from, unanimously reversed, with twenty dollars costs and disbursements, and the matter of the final accounting of the receiver remitted to Special Term.