In re the General Assignment for the Benefit of Creditors of Fulton ( 1883 )

Hardin, J. :■

"What the commissions should be allowed depends upon a construction of section 26 of the Laws of 1877 (chap. 466) as amended by section 7 of chapter 318 of the Laws of 1878, which provides that the assignee or assignees shall receive the commissions specified “ on the whole sum which will have come into his or their hands.”

That section received a construction by the Court of Appeals, In the Matter of the Assignment of Hulburt (89 N. Y., 259), where the same case (reported in 10 Abb. N. C., 284) was reversed. It was held that the words of the statute refer to the money actually received, not to the property assigned.

In the case before us, the assignees found the real estate was incumbered by two mortgages, one for $70,000 and one for $17,500. There was no specific direction to the assignees to pay the mortgage debts.

The case differs from Cox v. Schermerhorn (18 Hun, 16), much relied upon by the county judge. In that case the executors were responsible for the whole amount of such sales, and it was their duty to receive the proceeds of such sales, pay off the incumbrances if any and dispose of the balance of such proceeds as directed by the will.

When they rendered their accounts they charged themselves with the whole sums received and paid, and in those charges they were credited with the payment of $87,000 of mortgages.

By the terms of tbe trust they were authorized to sell the real estate devised to them and apply the proceeds - to the payment of the incumbrances. Gilbert, J\, says, “ the executors were liable’ for the price for which the property was sold.”

In the case in hand the assignees only charged in their accounts the moneys which they actually received. They ought not to receive commissions on a greater sum. (In re Woven Tape Skirt Co., 85 N. Y., 506; In re Dean, 86 id., 399.)

That part of the decree of the County Court of Niagara appealed from must be reversed, and the proceedings remitted to that court with directions to amend its decree, so as to allow the assignees commissions only upon the amount of money received by them, with costs of this appeal payable by the respondent Bush.

Smith, P. J., and Haight, J., concurred.

So ordered.