Opinion
January, 1936.
Order denying motion to compel the clerk of the Additional Special Term to place the promulgated plan of reorganization on the calendar, without payment of fee, and order on reargument denying motion to vacate the original order and to direct the county clerk to repay the sum of twenty dollars note of issue fee, paid under protest, affirmed, with ten dollars costs and disbursements. In view of the emergent character of the legislation out of which this proceeding arises, an issue exists as to whether or not the plan is conscionable and consistent with public policy. The statute raises the issue of fact as to the sufficiency and fairness of the plan. Section 416 Ins. of the Insurance Law was not intended to exempt the Mortgage Commission from the payment of fees due as a result of the submission of a plan of reorganization to the court for approval. The fact that the caption includes the expression "In the Matter of the Rehabilitation of Bond and Mortgage Guarantee Company," etc., does not change the situation; for, although the proceeding originates with the Mortgage Commission, the real party in interest is the committee of certificate holders. When a plan is once submitted, however, and fails of approval, it is not necessary to pay another note of issue fee for plans submitted with respect to the same underlying property sought to be reorganized. Young, Carswell, Davis, Adel and Taylor, JJ., concur.
See Schackno Act (Laws of 1933, chap. 745), § 8, as amd. by Laws of 1935, chap. 588. — [REP.