Opinion
November, 1918.
Gallert Heilborn (Walter S. Heilborn, of counsel), for appellant.
Joseph L. Frieder, respondent in person.
The receiver's commissions are part of the expense of administration, and are entitled to priority. Counsel fees, when allowable, are also part of the expenses of administration, but they should not be allowed for services in prosecuting an unsuccessful appeal, where, as here, the receiver did not obtain leave of the court to appeal. Utica Ins. Co. v. Lynch, 2 Barb. Ch. 573. The order must be reversed, and the application to pass the receiver's account remitted to the court below for the purpose of fixing the compensation allowable to receiver under section 3320 of the Code of Civil Procedure, and the allowance for counsel fees, including services upon the appeal of Frieder, but excluding services rendered upon the receiver's appeal and in connection with the motions for leave to appeal to the Appellate Division. The sums so allowed should first be paid from the fund in the receiver's hands, and such amount as remains should be paid to Frieder.
Order reversed, with ten dollars costs and disbursements, and matter remitted to the court below for disposition in accordance herewith.
Present: GUY, WEEKS and MULLAN, JJ.
Order reversed, with costs.