App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. In the Matter of the Petition of a Majority of the Directors of THE WARREN E. SMITH COMPANY, Appellant; MICHAEL F. SHELLEY, Commissions of a temporary receiver — by what act governed — on what computed — It seems, that a temporary receiver is vested with the title to the corporate prop- APPEAL by The Warren E. Smith Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of February, 1898, confirming the report of a referee appointed to take and state the accounts of Michael F. Shelley, temporary receiver of The Warren E. Smith Company, except from so much of said order as refuses to allow additional counsel fees to the attorney for the receiver. John T. Easton, for the appellant. Emanuel J. Myers, for the respondent. BARRETT, J.: I agree with Mr. Justice INGRAHAM that the amount of the receiver's commission is governed by section 3320 of the Code of Civil Procedure. Section 76 of chapter 8 of part 3 of the Revised Statutes applies only to the receivers specified in that chapter, viz., FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. permanent receivers. The whole of part 3 was repealed by chapter 245 of the Laws of 1880, with certain specified exceptions, among which was this section 76. At this time the act transferring to the Code the subject of voluntary dissolutions, and providingseemingly for the first time-for the appointment of temporary receivers in such cases (Chap. 178, Laws of 1880), was in existence. But the language of the repealing act forbids the inference that section 76 obtained any wider scope when the provisions as to temporary receivers went into effect, since it expressly makes that section "applicable to a receiver appointed as prescribed in section twenty-four hundred and twenty-nine of the Code of Civil Procedure." Section 2429 relates to permanent receivers, and, hence, section 76 in the Revised Statutes was retained with the same force which it had before, and no greater. Nor does chapter 378 of the Laws of 1883 apply. It was held in U. S. Trust Co. v. N. Y., W. S. & B. R. Co. (101 N. Y. 478) that this act is applicable only to insolvent corporations, and the true scope of the decision seems to be that it applies only to receivers appointed in bankruptcy proceedings instituted by third parties. At all events, it is clear that, under this decision, the act does not apply to a temporary receiver. It is held that the receivers referred to in section 2 are those treated of throughout the rest of the act, which requires them to file reports of their proceedings, and contains other provisions clearly referring only to permanent receivers. Neither the provision in the Revised Statutes nor the act of 1883 being applicable, the question of commissions is consequently governed by section 3320 of the Code. The respondent is a receiver of this corporation, and there is no other provision of law specifically prescribing his fees. I do not think, however, that he is limited to a commission based upon the cash which actually came into his hands. It is well settled, in the case of executors and trustees, that, where the statute allows commissions on all sums of money which they may receive and pay out, they are entitled to such commissions upon the whole amount of the trust estate in their hands. In Wagstaff v. Lowerre (23 Barb. 209, 225, 226) DAVIES, J., said: "In reference to them the statute allows commissions on all sums of money' that they may receive and pay out. (2 R. S. 93.) But commissions on the whole amount App. Div.] * * * FIRST DEPARTMENT, JUNE TERM, 1898. of the trust estate in their hands, under their control and managed by them, was intended, and has been uniformly allowed, even though a very small part was in money actually received or paid out. The compensation is given to him for his care and management of the estate, and not for the simple act of receiving and paying out." In Matter of De Peyster (4 Sandf. Ch. 511) it was held that the trustee is entitled to commissions on the capital of the estate, consisting of stocks and mortgages, although not invested or converted, as well as to commissions on the real estate, which was, in equity, personalty. And in Matter of Moffat (24 Hun, 325) it was held, "The commissions allowed to a trustee are to be computed upon the entire fund in his hands, whatever may be the nature of the property, and even though he may transfer to the beneficiaries the same securities which were received by him at the time of the creation of the trust." There are many other cases to the same effect, and the rule has been long and uniformly acted upon. The statute applying in these cases does not materially differ in its language from section 3320 of the Code. Matter of Hulburt (89 N. Y. 259) is not to the contrary. It was there held that chapter 466 of the Laws of 1877 (as amended by chapter 318 of the Laws of 1878), allowing assignees, for the benefit of creditors, a commission on "the whole sum" coming into their hands, refers to money, not property. The decision is based upon the particular language used, especially the adjective "whole," and the peculiar circumstances in which an assignee is placed, the latter being especially dwelt upon. EARL, J., said: "If it had been stated in the section that the commission was to be five per centum on the entire value of the property, or amount of property, or sum of money, it would have been plain enough. We do not * * * * * * intend by this construction to alter or affect the rules which have been laid down for computing the fees or commissions of sheriffs, executors, administrators and trustees. Our construction of the act now under consideration is confined to the language used and the consideration of what we conceive to have been the purpose of the Legislature." The contrary view seems to be based on the theory that a temporary receiver is not vested with title to any of the property of the corporation. Nealis v. American Tube & Iron Co. (150 N. APP. DIV.-VOL. XXXI. 6 FIRST DEPARTMENT, JUNE TERM, 1893. [Vol. 31. * Y. 42) holds the contrary. It was there decided that the insolvent corporation is not a proper party to an action brought by the temporary receiver to recover money paid to a third party under an illegal judgment, and BARTLETT, J., said: "It is the evident policy of the statute to vest in the temporary receiver many of the important powers that are exercised by a permanent receiver, and ** it is of vital importance that the title of the corporate property should be vested in an officer of the court who has full authority to reduce it to possession wherever found;" and again, "In such an action it would be not only an empty form to make the insolvent corporation a defendant, but would be inconsistent with the appointment of the temporary receiver, who for the purposes of holding, protecting and reducing to possession the property and assets of the company, is vested with title, and represents the corporation. and its creditors as fully as a permanent receiver after final judgment." This case is authority for the proposition that a temporary receiver is vested with title so far as the purposes of his trust require. His general functions relate to receiving and preserving, not to disbursing, the assets of the corporation. It has long been settled, however, that executors and administrators are entitled to one-half commissions for receiving, and one-half commissions for paying out, the moneys of the estate, and there is no reason why the exercise of judicial discretion conferred by section 3320 of the Code should by a different construction be limited to cash received. A temporary receiver appointed under section 2423 of the Code may, therefore, be entitled in an extreme case to two and one-half per cent of the value of the property coming into his hands for receiv ing and protecting the same. That, however, is the maximum. He is to receive only such a commission as the court may allow, not to exceed that sum. In the present case the commission awarded should have been exceedingly moderate, in view of the fact that the receiver employed many persons to assist him at considerable, and as is claimed somewhat unnecessary, expense to the estate. own labors were unquestionably slight and his responsibilities by no means great. At the same time the amount which Justice INGRAHAM thinks should be awarded him is quite disproportionate to even the limited services and responsibilities which the record discloses. It is insignificant in any just view of the receiver's acts. And I His App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. presume a somewhat larger sum would have been suggested but for the opinion that the commission is limited to the cash actually received and disbursed. As I think the court is not thus limited, the commission should not be so greatly reduced. Upon the whole, and in view of all the circumstances, my judgment is that a commission of $150 would be fair and reasonable; and accordingly I think the amount allowed below should be reduced to that sum. Upon the two other questions discussed I entirely concur with Mr. Justice INGRAHAM. RUMSEY and MCLAUGHLIN, JJ., concurred. INGRAHAM, J.: It seems that upon a petition of the majority of the trustees of the Warren E. Smith Company for the voluntary dissolution of said corporation, an order to show cause why the said corporation should not be dissolved was granted on the 3d of September, 1897, and upon the same day an order was entered, upon motion of the petitioners, appointing a temporary receiver of the corporation. The temporary receiver duly qualified and took possession of the property of the corporation on the 8th day of September, 1897; and on the 18th day of October, 1897, upon motion of the corporation, with consent of the creditors, stockholders and directors thereof, an order was entered discontinuing the proceedings, vacating the order to show cause and the order appointing the temporary receiver, and directing the temporary receiver to turn over and deliver to the corporation all the property and assets of the said company that came into his hands as said receiver, upon the giving to the said temporary receiver a bond of the amount of $3,500, with the condition that the said corporation should pay to the said receiver the sum or sums allowed him as fees and commissions, said receiver's counsel fees, and other expenses of the receivership, and directing the receiver to file his accounts, and appointing a referee to pass upon the same. The temporary receiver filed his accounts, and the corporation filed objections to it, which objections were considered by the referee, who thereafter filed his report; and from the order confirming that report this appeal is taken. By consent of counsel three questions were submitted to the referee: First, as to the amount of compen |