Waite v. F. J. Kaldenberg Co. — 46 N.Y.S. 516

Majority

p. 516

(19 App. Div. 379.)

WAITE v. F. J. KALDENBERG CO.

(Supreme Court, Appellate Division, First Department.

July 2, 1897.)

Headnote

Sheriffs—Keepers’ Fees—Right to Charge.

The right of a sheriff to charge keepers’ fees does not result from a levy, but from necessary or proper services, proven to have been rendered; and neither the making of a levy, prior to the appointment of a receiver of the debtor’s property, nor the recovery of judgments against the sheriff for services as keeper, is conclusive, as against such receiver, _ of the right to charge for keepers’ fees after his appointment.

Appeal from trial term.

p. 517

Action by Charles 0. Waite against the F. J. Kaldenberg Company, in which a receiver was appointed for defendant. From am order allowing sheriffs’ fees and keepers’ charges, the receiver appeals.

Reversed.

Argued before VAN BRUNT, P. J., and WILLIAMS, PATTER•SON, O’BRIEN, and INGRAHAM, JJ.

H. B. Kinghorn, for appellant.

Archibald C. Shenstone, for respondent.

On this record, as it comes before us, it is apparent that the sheriff’s charges fo¡r keepers’ fees were improperly allowed. The receiver took possession of the property of the defendant on or about the 7th 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 keepers’ fees does not result from 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 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 im this court. All concur.