Nestor v. Bischoff — 24 N.Y. St. Rep. 356

Majority

p. 356

Samuel K. Nestor, App’lt, v. Magdalena Bischoff et al, Resp’ts.

(Supreme Court, General Term, Second Department,

Filed May 13, 1889).

Headnote

Fees—Op sheriff—Where taxed—Waiver of objection—Code Civ. Pro., § 3387.

A motion to tax the fees of a sheriff should be made within the county; an objection, however, to a taxation without the county can be waived, and proceeding without objection is a waiver. Where the objection is raised in season, it is the duty of the judge to refuse to proceed.

This action was brought in 1874. A writ of replevin was. issued therein, and a requisition thereon was delivered to-the sheriff of Richmond county on the 14th day of July, 1884.

The sheriff alleges in his affidavit that he took possession of certain property of the defendant under and by virtue of the said writ, and that he kept such property in his possession until the 13th day of November, 1884, when an order was served upon him to discontinue the action.

In the early part of the year 1888, nearly four years after the action had been discontinued, the sheriff presented his bill for fees to the plaintiff’s attorney, and in March, 1888, a. demand was served upon the sheriff for the taxation of said bill. The taxation of the bill was regularly noticed before the county judge of Richmond county, for, the 26th day of March, 1888. On the 17th day of July, 1888, an order was made by the county judge, 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 Hon. Joseph F. Barnard, a justice of this court, at his chambers in the court house in the city of Poughkeepsie, on the 4th day of August, 1888. Affidavits were presented to said justice upon said taxation on behalf of the plaintiff in opposition to said bill, anjd on behalf of the said sheriff in support thereof. The justice taxed the costs on the 5th day of August, 1888, and an order was made by the said justice on or about the-11th day of August, 1888, taking and allowing the said bill

p. 357

at $400.32, without making any deduction from the bill as rendered. From this order the plaintiff now appeals to this court.

William M. Mullen, for app’lt; J. D. Van Hovenberg, for resp’ts.

By section 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 another county, and the validity of judgment rendered upon such trials has never been impugned.

The amount allowed upon the taxation was reasonable, and the taxation must be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.