The fees of the referee for making the sale and paying over the avails to the parties, as directed by the judgment, are the same as those allowed to a sheriff for making a sale in a like case. (Code of Civil Pro., § 3297.)
Where a sheriff is directed by a judgment of a court to make a sale of real estate, he is entitled to the same fees as for like services upon a sale of real property by virtue of an execution, except that In mortgage foreclosure cases, his entire compensation cannot exceed fifty dollars. (Code, sub. 11, § 3307.) His fees for selling real estate on execution are fixed by subdivision 7 of the same section, and are three per cent on the sum not exceeding $250, and two per cent on the residue arising from the sale. The claim made by. the referee to the fees rejected by the order of the Special Term is based upon the second paragraph in section 3297, which provides: “Where a referee is required to take security upon a sale, or to distribute, or apply, or ascertain and report upon the distribution or application of any of the proceeds of the sale, he is also entitled to one-half of the commissions upon the amount so secured, distributed or applied, allowed by law to an executor or administrator for receiving or paying out money.”
It is obvious that this provision is not applicable to this case, and the disallowance of the commission charged by the referee under this provision was correct and the order should be affirmed. The judgment is specific in terms and directed the referee to pay over the moneys realized on the sale, to the parties, after deducting the commissions allowed him by law. The referee was not required to invest the money and take security therefor, nor in any manner to distribute the same.
*362The suggestion made by the referee that a payment over to the parties themselves of the moneys realized on the sale and directed by the judgment, is a distribution of the proceeds, is altogether a misconception of the object and purpose of the statute.' The provisions are general and are applicable to all kinds of actions where the judgment provides for the sale of real estate, and is not limited to any particular class .of actions.
The distribution which the statute contemplates, and which if made would entitle the referee to one-half the commissions allowed to an executor or administrator for receiving and paying out money, is limited to cases where, by the decree, the referee appointed to make the sale is required to perform some duty subsequent to the sale, relating to the money realized, and the mere payment of the same directly to the parties without investment, or being charged with the care and custody of the same, does not entitle him to commissions. If such is not the purpose of the statute, then, for aught we can see, both classes of commissions are given to a referee who makes a sale of real estate in any action, except in a foreclosure action.
Ve hold without hesitation, that the judgment in this case did not provide for a distribution of any of the moneys realized on the sale, so as to entitle the referee to the commissions disallowed by the Special Term. Maher v. O’Conner (61 How., 103) is not in conflict with .these views. The terms of the decree in that case are not mentioned in the report, nor is the nature and character of the action stated, but a remark in the opinion of the court indicates that the views of the learned judge, are in accord with our own as to the meaning of the statute, for he says : “ He (the referee) is only entitled to these commissions upon such of the proceeds as he actually did distribute or apply. What he' paid over to the chamberlain was not, in my judgment, so distributed or applied within the meaning of the section.”
The referee was entitled to a fee of two dollars for drawing the deed. This fee is allowed a sheriff on deeding the land sold on execution “ to be paid by the grantee.” (Subd. 9, § 3307.) We think this fee is chargeable to and must be paid by the grantee, when the sale is made by a referee as well' as when made by a sheriff.
*363The order of the Special Term is affirmed, with ten dollars costs,, to be paid by the referee to the respondents. •
Smith, P. J., and HaediN, J., concurred.So ordered.