Wait v. Schoonmaker — 15 How. Pr. 460

Majority

p. 460

SUPREME COURT.

George Wait agt. Marius Schoonmaker.

Headnote

A sheriff may, under the statute, demand his fees for service of a summons and complaint, previous to the service thereof; hut if he semes them without prepayment, he cannot retain them, and refuse to make a return, because his fees are not paid.

Albany Special Term,

January, 1858.

Motion for attachment against the sheriff of Ulster for not returning a summons and complaint forwarded to him for service. The papers were served prior to November 28th, 1857, without demanding prepayment of fees. On that day the sheriff wrote to the plaintiff’s attorney, that the papers were served, and that on receipt of $1.25 for his fees and postage, he would return the papers. The plaintiff’s attorney did not do so, and bn the 12th of January, 1858, served on the sheriff, a notice to return the papers to him at his office in Albany within ten days, or show cause at the next

p. 461

special term, at Albany, why an attachment should not issue against him. The sheriff now appears and shows for cause against the attachment, that his fees for service of the papers have not been paid, and that such is the uniform custom of his office, adopted under legal advice.

John I. Burton, for plaintiff.

F. L. Westbrook, for sheriff.

Sheriffs, when required to serve summonses and complaints, and certain other papers, are entitled to demand payment of their fees previous to such service. (2 Rev. Stat. 651; Code, § 419.) But in this case, the sheriff performed the service without demanding prepayment of his fees. He cannot, therefore, refuse to return the papers for that reason, especially as he does not allege the non-payment of his fees for making a return as an excuse for not complying with the notice, and does not show how much his fees were on that account. Having waived the right of prepayment, he must make a proper return of the papers served. As the question is new, and his practice was adopted on legal advice, and he swears to good faith, and the plaintiff’s attorney appears not to have paid the fees, though notified in November last, I shall not impose costs on the sheriff, and shall give him ten days after notice of the order, to return the papers, in default of which an attachment may issue. Let such an order be entered.