Waite v. F. J. Kaldenberg Co. — 19 A.D. 379

Majority

p. 379

Charles O. Waite, Plaintiff, v. F. J. Kaldenberg Company, Defendant. Clarence Lexow, as Permanent Receiver of the F. J. Kaldenberg Company, Appellant; Amelia Gorman, as Executrix, etc., of John J. Gorman, Deceased, late Sheriff of New York County, Respondent.

Headnote

A sheriff’s .keepers’fees — liability therefor of a receiver of the property after a levy thereon—proof required-.

The right of a sheriff to charge keepers’ fees for the care of property taken on execution does,not result from the levy, but from necessary or proper services duly proved to have been rendered.

In the absence of proof that keepers were ever in possession of the property, or rendered services in its protection, the mere fact that the sheriff levied upon it prior to the appointment of a receiver, and that certain persons recovered judgments against the sheriff for services as keepers will not make the receiver liable therefor.

Appeal by Clarence Lexów, as the permanent receiver of the F. J. Kaldenberg 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 24th day of December, 1896, allowing to Amelia Gorman,- as executrix, etc., of John J. Gorman, deceased, late sheriff of New York county, sheriff’s fees and keeper’s Charges. -

p. 380

H. B. Kinghorn, for the appellant.

Archibald C. Shenstone, for the respondent.

• On this record as it comes before us, it is apparent that the sherill’s charges for keeper’s fees were improperly allowed. The receiver took possession, of the property of the .defendant on or about the 'fth of April, 1893; he made an inventory and put .two persons employed by him in charge of the property. It would seem that the sheriff’s claim for the fees of the three persons said to have been employed by-him as keepers is-for services of such keepers, subsequent to the receiver taking possession. There is no satisfactory proof of any kind, as against this receiver, that the sheriff’s alleged keepers were ever in possession after the receiver took the.' property, or ¡that they actually rendered any service in watching or taking care of that property.- That those three persons recovered judgments against the sheriff for services as keepers does not affect the matter in any way. Those judgments are not binding upon the receiver, nor-is the. fact that the sheriff merely levied prior to the appointment of the receiver decisive of the matter. The right to charge' keeper’s fees does not-result,.f ram- a levy, but from-necessary or proper services .duly proven to have been rendered. On these papers we have no other course to. pursue than to reverse the Order, but, under all the circumstances of the case, we'think that the executrix of the sheriff should have an opportunity to present her claim fully to the court, and for that reason the order will be reversed, with costs, with permission to make a new. motion on-proper papers, and on payment of costs of the motion in the court below and of the appeal in this court.

Van Brunt, •' P. J., Williams, O’Brien and Ingraham, JJ., concurred. '

Order reversed, with costs, with leave to make a new motion on ' proper papers, and on .payment of costs of motion-and of appeal.