Solomon v. Saqui — 12 N.Y. St. Rep. 164

Majority

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Jacob Solomon v. Henry Saqui, et al.

(City Court of New York, Special Term,

Filed December 17, 1887.)

Headnote

Costs — Taxation of—Sheriff’s fees—Right of judgment debtor to HAVE THEM TAXED—CODE ClV. PRO., § 3287.

Where a sheriff sells property under an execution, the judgment debtor is entitled, as of right, to have the fees of the sheriff taxed, to the end that the amount paid (less the legal fees) be credited upon the execution.

Motion by defendants (after demand made) to compel the sheriff to tax his fees.

Solomon, Kantrowitz & Esberg, for motion; Cochran & Clark, opposed.

Under 3 Rev. St. (6th ed.), 924, Code, § 3287, the ‘ ‘ sheriff, who, upon the collection of an execution * * * claims any fees which have not been taxed, must, upon the written demand of the person liable to pay the same, cause them to be taxed.”

The sheriff herein, under an execution for $579.59, sold property of the defendants and realized $379,70. The fees and expenses charged aggregate $172.62. The plaintiff’s attorney has assented to the bill, and the sheriff’s counsel claims that as the defendants are not settling the execution or paying the fees, and the amount realized is insufficient to satisfy the execution, the defendants are not entitled to have the fees taxed.

This construction of the law will not do. „ The fees come from the proceeds of sale of the defendant’s property, and the net amount realized on the execution is, in law, a payment of the judgment pro tanto, leaving the balance, when ascertained, to be paid by the defendants when able. The judgment creditor only credits the net amount received from the sheriff, and the defendants remain liable for the balance. It is unreasonable, therefore, to say that the defendants are not interested in the amount of the sheriff’s bill.

The approval of the bill by the plaintiff’s attorney may estop the judgment creditor from objecting to its accuracy, but it does not conclude the defendants, who, in reality, are the persons paying the sheriff’s fees. Any other construction would impair, if not destroy, one of the evident purposes of the statutory provision before referred to. It matters not whether a judgment debtor pays an execution in money or is paid by means of a sheriff’s sale of his goods. In either event, it is in legal effect, a payment by him, and whether the judgment is paid wholly or in part, the person making the payment is entitled, as" of right, to have the fees of the sheriff taxed, to the end that the

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amount paid (less the legal fees) be credited upon the execution.

- It follows that the defendants are entitled to have the sheriff’s bill taxed. Application granted.