Depew v. Solomonowitz

Hatch, J.: 'It appeared by the moving papers that on the 23d day of July, 1898, the plaintiffs filed with the sheriff of Westchester county a warrant of attachment against the defendant, and that on the same day, upon the plaintiffs’ request, the sheriff levied upon and took into his possession certain personal property consisting of a stock of goods in a retail grocery store in the village of White Plains. The goods were thereafter held in the custody of the sheriff until the 16tli day of August, 1898, when a part was sold as perishable prop [513] erty by the sheriff under an order of the court requiring him so to do, and the remainder of the goods continued in the possession of the sheriff until the fifteenth day of September following, when they were sold at auction. The entire proceeds realized was the sum of $516.78. The sheriff’s fees, which have been taxed under the order from which the appeal is taken, amount to $367.58, leaving a balance of $149.20. The plaintiffs object to two items in the bill, one for the rent of the store.in which the attached goods were found, and where they were kept, amounting to forty dollars; and the other for keeper’s charges, day and night, from July twenty-third to September fifteenth inclusive, fifty-six days, at five dollars per day, amounting to two hundred and eighty dollars. The affidavits read in opposition to these items state that, shortly after the attachment was levied, but upon what day is not given, the plaintiffs notified the deputy sheriff who had charge of the attachment proceeding, that they desired the goods to be removed and placed in storage pending the application for judgment in the action. They further stated that plaintiffs did not wish .to pay the rent of the store and the keeper’s fees in connection therewith. The sheriff declined to act thereon, but continued to keep the goods in the store. The only answer which the sheriff makes as to why the request should not have been granted, is that he had no general storage room, and that 'there would, have been great loss occasioned by moving the goods elsewhere. No facts are stated from which the court can see wherein more expense would have been incurred had the plaintiffs’ request been complied with, than was incurred in keeping the goods in the store. The provisions of section 3307 of the Code of Civil Procedure (Subd. 2) authorize the judge issuing the warrant or a court to allow additional compensation Tor trouble and expenses in taking possession of and preserving the property, as the court or judge shall deem proper. The amount which is thus to be allowed rests within the sound discretion of the court. ( Woodruff v. Imperial Fire Ins. Co., 90 N. Y. 521.) Such allowance, however, must be based upon proof, and cannot be founded upon the judgment of the court as to what should be the proper measure of compensation. Legal proof is essential to authorize such [514] allowance. (Nestor v. Bischoff, 123 N. Y. 517.) By tim writ of' attachment the sheriff is commanded to take and- safely keep the property which is the subject of the levy. Under such seizure he stands as the representative of the parties to the action, and is bound to use diligence and care in the preservation of the property, the measure .of care in. this regard being that of a bailee for hire. (Moore v. Westervelt, 27 N. Y. 234.) He is not an insurer of the property levied upon, and is not to be held answerable therefor unless it be lost through the negligence of himself or those to whom it is intrusted. (Browning v. Hanford, 5 Hill, 588; Moore v. Westervelt, 21 N. Y. 103.) It is equally the duty of the sheriff not only to preserve the property, but to do so with as little expense to_ the parties as the proper discharge of his obligation will permit; and he cannot, under color of preservation, make the matter so expensive, either by the occupation of premises at an exorbitant rate of rent, or by placing the .property in the custody of an unnecessary number of keepers, that it will practically eat up the entire sum realized. (Crofut v. Brandt, 58 N. Y. 106.) If the sheriff could have removed these goods from this store and placed them in a storage warehouse, which would have been regarded in the law as a proper place of storage, at a less expense than he in fact incurred, then it became his duty so to do; and we think it must be assumed, upon the present proof, that the expense of caring for this property could have been reduced, as the plaintiffs made request for its removal and storage. If such be the fact, then the allowance, as made by the learned court, would not be justified • by the proof. The facts, however, in the present record are so meagre as not to admit of a disposition of this matter. If the sheriff could in fact find no other place, in the exercise of reasonable diligence, then he would be entitled to the sums which have been awarded, even though they absorb nearly the whole amount which the property produced at the sale. If, however, the plaintiffs are able to show that had their request been complied with the costs and expenses of caring for the property would have been very much reduced, then the sheriff would only be entitled to such an allowance as would equal the reduced sum of the expense, and his bill would thus be diminished proportionately. As the justice who taxed the fees, seems to have concluded that the sheriff could act in the care of this [515] property without any regard to such request, we think the determination thereon should not be supported, but that the case should be= remitted to the Special Term for its disposition, upon such proof in. respect to these two items as the parties may produce. The order should be reversed and the matter' remitted to the Special Term for disposition. All concurred. Order reversed and matter remitted to the Special Term for disposition.