Titman v. Mayor of New York — 38 N.Y. St. Rep. 897

Majority

p. 897

James B. Titman, Adm’r, et al., Resp’ts, v. The Mayor, etc., of New York, App’lt.

(Supreme Court, General Term, First Department,

Filed May 15, 1891.)

Headnote

Sheriffs—Mileage—Laws 1890, Chap. 523.

Chapter 523, Laws 1890, provides a general scheme in relation to the fees of the sheriff of New York, and impliedly repeals that portion of subd. 6 of § 8307 of the Code which allows the sheriff mileage on executions.

Appeal from an order made at special term denying defendants’ motion to review the taxation of the clerk in striking from defendants’ bill of costs, the item of sheriff’s mileage.

William H. Clark and Terence Farley, for app’lt; L. Laftin Kellogg, for resp’ts.

Upon the taxation of costs by the clerk, it was claimed, .that the defendants were entitled to charge mileage for the sheriff, on the execution at the rate of ten cents per mile.

The clerk on objection struck out the item, which adjustment

p. 898

was sustained on appeal to the special term. The defendants claim the right to tax mileage for the sheriff under subd. 6, of § 3307 of the Code of Civil Procedure, which provides, that the sheriff shall be entitled to charge, “ for mileage upon an execution for each mile going only, ten cents to be computed as prescribed in subd. 1st of this section.” By chap. 523 of the Laws of 1890, entitled, “ An act in relation to the office of sheriff of the city and county of New York,” it is provided, subd. 6 of § 17, that the sheriff is entitled, “ For receiving an execution against property, entering it in his books, searching for property and postage on the return, when made through the post office, one dollar and fifty cents.- If required by the sheriff, that fee, together with his fee for the return of the execution, must be paid by the person, in whose behalf the execution is issued, at the time when it is delivered to the sheriff, who is not bound to execute it, unless the fee is paid.”

That act with great minuteness and detail specifies the fees which the sheriff of the city and county of New York shall be entitled to receive for the rendition of different services, and in referring to the fees which the sheriff is entitled to receive upon an execution it omits all reference to mileage.

By its twenty-third section it repeals all acts and parts of acts inconsistent therewith. We are of the opinion that the act is to be construed as providing for the fees of the sheriff of the city and county of New York, as an entirety, and that it is to be regarded as having repealed by implication that part of subdivision 6 of § 3307 of the Code of Civil Procedure, which allows the sheriff for mileage on executions.

In other words the act provides a general scheme in relation to the fees of the sheriff of the city and county of New York independently of and uncontrolled by the general provisions of the Code of Civil Procedure in relation to the fees of sheriffs.

We think this is entirely clear when a comparison is instituted between the 16th subdivision of § 17 of the act of 1890 and the twenty-one subdivisions of § 3307 of the Code of Civil Procedure,

The two sections will be found to relate mainly to-the same services, and the fees for performing the same are as distinctly specified in the act of 1890 as in the general provisions of the Code.

The taxation of the clerk was right, and the order below should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.