Opinion
April 29, 1938.
Samuel C. Whitman, for the plaintiff.
Fred Rosenberg, for the defendants.
Motion for an order directing the plaintiff to pay the referee the sum of fifty dollars. The referee was appointed in a judgment of foreclosure and sale, and pursuant thereto he proceeded to advertise and did advertise the mortgaged premises directed to be sold, the sale to take place on March 25, 1938. The day before the sale he received a telephone call from the attorney for the plaintiff requesting him not to sell the mortgaged premises inasmuch as the defendant had made the default good. He did not, therefore, appear at the time and place set for the sale. Subsequently he requested payment of his fees from the said attorney, but it was refused — hence this motion.
The moving party cites the cases of Prudential Ins. Co. v. Hogan ( 235 A.D. 196); Interboro Associates, Inc., v. Zeitler (248 id. 737), and Railroad Cooperative Building Loan Association v. Cautero (240 id. 318) in support of this application.
I am of opinion, however, that none of these cases has any application, for in each of them there was a bid upon which a computation of the referee's fee could be made. In the present case there has been no sale and there is no bid. Consequently the referee is not entitled to any compensation.
Motion denied. Submit order.