Opinion
April 6, 1942.
Where an action to foreclose a mortgage upon real property was settled after the referee to sell named in the judgment had published the notice of sale but before the sale took place, it was improper to allow the referee the sum of $100 for his compensation as referee. Under section 1546 of the Civil Practice Act, the referee's compensation may consist of (1) the same fees allowed to the sheriff and (2) commissions upon the amount secured, distributed or applied. ( Prudential Ins. Co. of America v. Hogan, 235 App. Div. 196.) Unless the property is sold for $10,000 or upwards, the referee's fees and commissions must be actually computed as provided for by sections 1546 and 1558 of the Civil Practice Act. ( Ryan v. Majestic Home Builders, Inc., 238 App. Div. 167.) Since the sale did not take place and since no amount was thereby secured, distributed or applied, upon which fees or commissions could be computed, the referee was entitled only to the sum of one dollar for advertising. Order, in so far as appealed from, modified on the law by striking therefrom the figures "$100" in the fourth ordering paragraph and by substituting therefor the figures "$1.00." As thus modified, the order is affirmed, without costs. Hagarty, Johnston, Taylor and Close, JJ., concur; Lazansky, P.J., not voting.