In re the Assignment of Carrick , 13 Daly 181 ( 1885 )

Larremore, J.

The drawing of the deed of assignment is not properly a charge against the assigned estate unless specifically so provided for in the deed itself. Were it such a charge it seems that the decision In re Levy's Accounting (1 Abb. N. C. 177), would particularly apply here.

The assignment itself is on a printed form, and of the simplest character, requiring neither skill nor legal acumen to prepare. The preparation of the schedules and inventory is a duty required of the assignee. There are printed blanks for the purpose, and the preparation of them is peculiarly a matter to be done by the assignee. There is nothing in the evidence to show that these schedules were difficult or extraordinary in them nature (Matter of Burbank, 10 Daly 123). The bond is also on a printed blank, and it is the duty of the assignee to obtain his sureties; the attorney may be required to see that it is properly executed, but that is all.

The attorney for the assignee, whilst making a general charge of $150 for these services, including consultations and advice between December 6th and 20th, says that he thinks that the specific items are reasonably worth as follows :

Assignment..........$25.00

Schedules and Inventory........50.00

Bond,..........25.00

I do not see how any of these items can be allowed under the decision of Chief Judge Daly, in Matter of Burbank (supra). It may be that the attorney has a right to be paid for his services out of the estate, but in an indirect manner ; he must look to the assignee and get it from his commissions. That is the decision of this court at Special Term, and until reversed, I am bound by it, no matter what my own opinions may be.

The court does not recognize such a tiling as a “ retainer ” to counsel by an assignee. The attorneys will be paid for services rendered which were necessary (Matter of Schaller, 10 Daly 57). For the reasons stated by, the learned judge in the case cited, this item must be disallowed:

C. Fine, retainer fee.........$100.00

The item of $150, in the four suits brought against the assignee, and of $100, in the suit brought against the sheriff by the assignee, are under the ruling laid down by Daly, Ch. J., in Matter of Burbank (supra), excessive.

No benefit whatever has occurred to the assigned estate in either of the above cases as yet. And the proceedings are but commenced; an answer served in one case and a replevin suit begun by the assignee. In Burbank’s case, the attorney for . the assignee was successful in his replevin suit and augmented the estate, and yet the court thought that $15 was a fair price to charge. As I said above I am bound by that decision.

The item of $100 for services of the attorney upon the application for his removal should not be allowed.

Order accordingly.