Opinion
December 20, 1932.
Appeal from Supreme Court of New York County.
Charles S. Scholnicoff of counsel [ Aaron H. Kaufman, attorney], for the appellant
Frederick W. Sperling, for the respondent.
Present — FINCH, P.J., MARTIN, O'MALLEY, SHERMAN and TOWNLEY, JJ.
The action was for an accounting. After a decision and interlocutory decree in favor of the plaintiff an order appointing the respondent "to hear and determine the amount of money wrongfully appropriated by the defendants belonging to the plaintiff in the conduct of the plaintiff's business" was made. After filing his report the respondent moved for an order directing that out of certain moneys on deposit to the credit of defendants, his fees as referee be paid. The motion was granted to the extent of fixing a lien upon the deposit in favor of the referee in the sum of $1,825.
Assuming without conceding that the record establishes the agreement for compensation relied upon by the referee, the order fixing a lien for the services in the amount claimed was unauthorized. Respondent's remedy was not for summary relief by motion, but by an action at law ( Little v. Lynch, 99 N.Y. 112, 114), where the issue as to the necessity for the time alleged to have been devoted to the work of the reference may be contested.
It follows that the order appealed from should be reversed, with twenty dollars costs and disbursements to the plaintiff, and the motion denied, with ten dollars costs.
Order reversed, with twenty dollars costs and disbursements, and motion denied, with ten dollars costs.