Opinion
February 26, 1937.
Appeal from Supreme Court of New York County.
Sydney Krause of counsel [ Krause, Hirsch Levin, attorneys], for the appellants.
Maxwell P. Reckseit of counsel [ Sidney Lipston, attorney], for the respondent.
Present — MARTIN, P.J., McAVOY, O'MALLEY, TOWNLEY and COHN, JJ.
The sole question for the learned official referee was: Are any additional moneys due Dworskys over the agreed sum of $266.08? If so, may they hold the collateral for their payment, in addition to such agreed sum? The referee upheld the Dworskys as to both items claimed as further fees for collection and counsel fee, in his report. The court confirmed the report. Nevertheless the order entered thereon was not conformable to the decision. It provided that the appellants be directed to turn over the collateral accounts receivable upon a payment which did not include the sums the referee found due to appellants. It makes no provision for payment of the only items contested before the referee and on both of which he found in appellant's favor.
The order entered July 2, 1936, should be modified by conforming same to the referee's report, and as so modified affirmed, and the order denying the motion to resettle said order should be reversed, with twenty dollars costs and disbursements to the appellants.
Order entered July 2, 1936, unanimously modified by conforming same to the referee's report, and as so modified affirmed, and the order denying the motion to resettle said order reversed, with twenty dollars costs and disbursements to the appellants. Settle order on notice.