People ex rel. Sutliff v. Board of Supervisors — 47 N.Y. St. Rep. 928

Majority

p. 928

The People ex rel. Daniel Sutliff, Resp’t, v. The Board of Supervisors of Fulton County, App’lt.

(Supreme Court, General Term, Third Department,

Filed September 29, 1892.)

Headnote

Certiorari—Fees for return.

Where the proceeding is against a board of supervisors as a body, § 8280 of the Code does not apply, but the fee for making the return is to be at the rate prescribed by § 2185.

Motion for reargument. For former opinion, see 46 St. Rep., 470 .

Smith & Nellis (John M. Carroll, of counsel), for resp’t; N. H. Anibal (J. A. Dennison, of counsel), for app’lt.

—Motion for re-argument on ground that § 3280 of the Code of Civil Procedure and § 1 of chap. 63, Laws of 1886, were overlooked or misapprehended.

The laws in question were not overlooked or misapprehended. This proceeding is against the board of supervisors as a board or body, and not against the individual supervisors of Fulton county.

The defendant is to make a return as a board, the individual members are not to make a return of their separate individual actions ; hence we think the laws referred to are not applicable to the question involve'd in this case.

The defendant should state the amount of fees demanded, measured by § 2135 of the Code, and the order heretofore entered may be so modified as to require the defendant, within ten days after the entry thereof, to serve upon the relator’s attorney a bill of items of the fees claimed by it, properly verified, which if disputed by the relator may be taxed before a judge of this court, or at a special term thereof upon notice by either party, and that upon the payment thereof if not disputed, dr as taxed by su«h judge or court, that then the defendant forthwith file its return.

Motion for reargument denied; order modified as per memorandum, without costs.

Mayham, P. J., Putnam and Herrick, JJ., concur.