Hyperlawhypertext legal database Nestor v. Bischoff 5 N.Y.S. 312

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Nestor v. Bischoff

5 N.Y.S. 312 Court N.Y. Gen. Term Decision date 1889-05-18 English

Delivered by Pratt, J.

Contents

Majority

p. 312
Nestor v. Bischoff et al.
(Supreme Court, General Term, Second Department.
May 18, 1889.)

Headnote

Sheriffs—Taxation of Fees—Waiver of Objection.
By Code Civil Proc. N. T. § 3287, a motion to tax the fees of a sherifi must be made within the county of the action; but, when no objection is raised to the taxation in another county, it will be considered waived.
Appeal from special term, Richmond county.
Replevin by Samuel IC. Nestor against Magdalena Bischoff, executrix, and others. The sheriff of Richmond county took possession of the property in said county, and kept possession until an order was served on him to discontinue the action, which order was granted to plaintiff, at his request, on bis giving bond for payment of costs and damages. Nearly four years after said discontinuance the sheriff presented his bill for fees to plaintiff’s attorney, and a demand was served on the sheriff for taxation of said bill. The taxation of said bill was regularly noticed before the county judge of Richmond county, who made an order refusing to tax the said bill, on the ground that he had no jurisdiction of the matter. The sheriff then noticed the bill for taxation before a justice of the supreme court, at his chambers in the courthouse in the city of Poughkeepsie. Affidavits were presented to said justice upon said taxation on behalf of plaintiff in opposition to said bill, and on behalf of said sheriff in support thereof. An order was made by the said justice taxing and allowing the said bill. From this order plaintiff appeals.
Argued before^DYKMAN and Pratt, JJ.
Wm. M. Mullen, for appellant. J. D. Van Hovenberg, for respondent.

By paragraph 3287 of the Code a motion to tax the fees of a sheriff should be made within the county. And, had the objection been raised in season, it would have been the duty of the judge to have refused to proceed with the taxation. The objection could be waived, and proceeding without objection was a waiver. The case is analogous to the trial of an action at law. If objection is made, that can only take place within the proper county. Yet for considerations of convenience such trials frequently take place in an

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other county, and the validity of judgments rendered upon such trials have never been impugned. The amount allowed upon the taxation was reasonable, and the taxation must be affirmed, with costs.