Auerbach v. Hesse

Per Curiam. Plaintiff is a city marshal. He sues upon a check given him in payment of services in executing a warrant in summary proceedings to dispossess a tenant. The answer sets up as a defense that the check was given in reliance upon a false representation that the amount of the check was the “proper and legal fee and compensation of said warrant.” The defendant appeals from an order granting summary judgment for plaintiff and from said judgment. Section 178 of the Municipal Court Code provides that a fee of one dollar shall be allowed to a marshal for executing a warrant in summary proceedings and also that “ the said marshals shall [657] perform all other services required of them by law without any fees or compensation and no other fees, charges or compensation shall be allowed to, demanded or charged by them.” It was a clear violation of this statute for the marshal to demand or charge a lump sum for his services and disbursements. He is entitled only to his statutory fees and the actual amount of his reasonable and necessary disbursements. If the amount of this check exceeded this sum the marshal cannot recover on it. Judgment and order reversed and the motion for summary judgment denied, with ten dollars costs. All concur; present, Guy, Burr and Proskauer, JJ. Judgment and order reversed.