Titman v. Mayor of New York — 14 N.Y.S. 518

Majority

p. 518

Titman et al. v. Mayor, Etc., of City of New York.

(Supreme Court, General Term, First Department.

May 15, 1891.)

Headnote

Sheriff’s Fees—Mileage—Repeal of Statute.

Laws FT. Y. 1890, c. 583, which provides (section 17) that the sheriff shall be entitled to receive “for receiving an execution against property, entering it in his books, searching for property, and postage on the return when made through the post-office, one dollar and fifty cents, ” etc., and section 83 of that act, repealing all acts and parts of acts inconsistent therewith, repeal by implication Code Civil Proc. FT. Y. § 3307, subd. 6, allowing the sheriff mileage on execution.

Appeal from special term, New York county.

Action by James B. Titman, administrator, and others, against the mayor of the city of New York and other defendants. From an order denying a motion to strike the item of mileage from the clerk’s taxation of costs defendants appeal. Code Civil Proc. H- Y. § 3307, provides that a sheriff shall be entitled to charge “for mileage upon an execution, for each mile, going only, ten cents, to be computed,” etc. Laws H. Y. 1890, c. 523, § 17, subd. 6, provides that the sheriff shall be entitled to receive “for receiving an execution against property, entering it in his books, searching for property, and postage on the return, when made through the post-office, one dollar and fifty cents.” Section 23 repeals all acts and parts of acts inconsistent therewith.

Argued before Van Brunt, P. J., and Daniels and Lawrence, JJ.

Wm. H. Clark, (Terence Farley, of counsel,) for appellants. L. Laflin Kellogg, for respondents.

Upon the taxation of costs by the clerk it was claimed that the defendants were entitled to charge mileage for the sheriff on the execution at the rate of 10 cents per mile. The clerk, on .objection, struck out the item, which adjustment was sustained ou appeal to the special term. The defendants claim the right to tax mileage for the sheriff under subdivision 6 of section 3307 of the Code of Civil Procedure, which provides that the sheriff shall be entitled to charge “for mileage upon an execution, for each mile, going only, ten cents, to be computed as prescribed in subdivision first of this section.” By chapter 523 of the Laws of 1890, entitled “Án act in relation

p. 519

to the office of sheriff of the city and county of New York,” it is provided (subdivision 6 of section 17) that the sheriff is entitled “for receiving an execution against property, entering it in his books, searching for property, and postage on the return, when made through the post-office, one dollar and fifty cents. If required by the sheriff, that fee, together with his fee for the return of the execution, must be paid by the person in whose behalf the execution is issued, at the time when it is delivered to the sheriff, who is not bound to execute it, unless the fee is paid. ” That act with great minuteness and detail specifies the fees which the sheriff of the city and county of Hew York shall be entitled to recehe for the rendition of different services, and in referring to the fees which the sheriff is entitled to receive upon an execution it omits all reference to mileage. By its twenty-third section it repeals all acts and parts of acts inconsistent therewith. We are of the opinion that the act is to be construed as providing for the fees of the sheriff of the city and county of Hew York as an entirety, and that it is to be regarded as having repealed by implication that part of subdivision 6 of section 3307 of the Code of Civil Procedure, which allows the sheriff for mileage on executions; in other words the act provides a general scheme in relation to the fees of the sheriff of the city and county of Hew York, independently of, and uncontrolled by, the general provisions of the Code of Civil Procedure in relation to the fees of sheriffs. We think this is entirely clear when a comparison is instituted between the sixteenth subdivision of section 17 of the act of 1890 and the 21 subdivisions of section 3307 of the Code of Civil Procedure. The two sections will be found to relate mainly to the same services, and the fees for performing the same are as distinctly specified in the act of 1890 as in the general provisions of the Code. The taxation of the clerk was right; and the order below should be affirmed, with $10 costs and disbursements.

All concur.