Equitable Life Assurance Society of the United States v. Olyphant

The following opinions were "delivered at special term on the hearing of the motion:

I do not think the right to tax the searches as a disbursement depends on the rule reférred to.

The question, I think, depends on the custom of the profession,

Henry Day (George Waddington, of counsel), for app’lt; Martin J. Keogh, for clerk of W estchester county, resp’t.

I feel constrained to reverse my former decision as to the right to tax disbursements for searches made by the various title companies. Upon the former argument I was under the belief that allowance for searches in foreclosure actions was of recent date, and resting for authority only on the practice of the profession. Chapter 342, Laws of 1840, relative to the expense of foreclosure suits in chancery, bjr § 13, prescribes the fees of clerks and registers for official searches. I am'not clear that this refers particularly to foreclosure suits. On the contrary, it seems to be a regulation of the fees of the officers named for searches for any purpose. 'But a reference to works on chancery practice shows that it was the custom to allow expenses of searches by the clerk of the court for judgments, etc.

In Trustees v. Cowen, 5 Paige, 510, the general rule of practice is enunciated that fees for services rendered by all officers of the court in the prosecution of suits in chancery may be allowed the complainant. I think this is the only theory upon which disbursements for searches can be allowed, and that when not made by officers of the courts, or other public officers, they are not properly chargeable. Buie 64 of this court provides for filing official searches made in the progress of the cause.

Section 1561 of the Code authorizes the court in partition suits to dispense with the reference as to liens of creditors where the official searches of the clerk and register are produced. I think that there thus appears, both in the statute and rules of the court, and in the practice, a distinction between searches made by public officers and those made by other persons, and only the former can be properly taxed as disbursements. Taxation of clerk refusing-to allow items for searches affirmed.

This is an appeal from an order denying the motion of the plaintiff to require the county clerk of Westchester county to allow the sum of $23.40 paid to the Lawyers’ Title Insurance Company for searches in this action.

The action is for the foreclosure of a mortgage, and the clerk refused to tax the sum paid for searches because they were not official, and the special term affirmed the taxation.

Ho charges can be taxed for disbursements except such as are legal and necessary. If a lawyer hires a private individual to make a search for him, the amount paid him would not be a legal disbursement. But if the lawyer obtains an official search, the case is different.

This Lawyers’ Title Insurance Company seems to be organized for the purpose of making searches respecting the title to real property, and holds itself out for employment by all persons, but it sustains no official position, and its searches have no official force or effect.

We concur in the view taken at the special term, and the order appealed from should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.