Mallory v. Reichert

Davis, P. J. — The execution in the suit of Mallory agt. Reichart was issued to the sheriff, and by him levied upon the stock of goods of the defendant Reichert. On the subsequent sale of the goods they produced the sum of $3,488.39. The sheriff’s bill, presented and claimed by the deputy, one Mark L. Frank, who had the execution in charge, amounted to $1,151.45. The plaintiff demanded a taxation of the bill, and on his motion it was taxed at special term, each party presenting a number of affidavits in relation to the several items charged. An order was made on such taxation allowing the sheriff the whole amount charged, to wit, $1,151.45. From that oi’der the plaintiff appeals. The counsel for the sheriff do not pretend to defend the taxation of this bill on any legal or other ground. On the contrary they say: “We will not attempt to impose upon the court since, the decision in McKeon agt. Horsfall and Woodruff agt. Imperial Fire Company, by insisting that all of these items are taxable if the court shall assume that a taxation, properly so called, was before, it.” They, however, undertake to claim that the taxation was one not authorized by law, and therefore that this court must either treat the proceedings as a mere arbitration ” and leave the parties in the position in which they have placed themselves thereby, or as wholly coram non judice and a proceeding without jurisdiction, and dismiss the appeal without prejudice to an action. The bill on its face is one which could not be sustained even on the affidavits presented on behalf of the sheriff alone. For no court should allow, for instance, that the sheriff could employ under any circumstances twenty-one keeper's at a time to watch over a stock of goods consisting chiefly of empty paper boxes, especially after the court of appeals have decided that no charge for keepers can be taxed (McKeon agt. Horsfall, 88 N. Y., 429). We think, under the statute, the plaintiff had a right to demand the taxation. The money had been made on the execution and was in the hands of the sheriff. The plaintiff was [430] entitled to have it paid to him, less the sheriff’s legal fees and charges, and although the statute, in speaking of taxation, uses the words “ upon being required by the defendant,” we are of opinion that, under the circumstances, the plaintiff in the execution occupied that relation as between himself and the sheriff in his effort to defend himself against extortion. In O'Connor agt. O'Connor (47 Supr. Ct. R., 500), a case quite analogous with the present in its facts, the taxation was made on motion of the plaintiff. In this case the motion for taxation was not made to “ any judge or officer of the court,” but to the court itself, sitting at special term; and we see no reason why it should not be held that, under its general jurisdiction over all actions pending in the court, and after process issued therein, the special term as such had not authority to make the taxation in question. Ueither party raised any question, as would seem, at the hearing, of any want of power in the court. The order taxing the bill at the full amount claimed is in direct conflict with all the authorities of which we have any knowledge, and especially of Crofut agt. Brandt (58 N. Y., 106), O'Connor agt. O'Connor (47 Supr. Ct., 500), Lord agt. Richmond (38 How. Pr., 173), McKeon agt. Horsfall, 88 N. Y., 429), Woodruff agt. Imperial Fire Insurance Company (90 N. Y., 521). Under these authorities large numbers of the items of the bill should have been rejected. Inasmuch as the bill presented has received in point of fact no taxation or consideration of its items, we do not think it our duty to go through and determine what should or what should not have been allowed. The proper disposition of the case seems to us to be to reverse the order, with costs of appeal to the appellant, and to remand the proceedings to the special term with directions to proceed and tax the bill in conformity to the several authorities above cited. Ordered accordingly. Daniels and Brady, JJ., concur.