Chambers v. Appleton

Headnote

Right of clerk to charge for making return to court of appeals.—Code Civil Procedure—§§ 3801, 3284.

Appeal by plaintiff from order denying his motion that the clerk be compelled to deliver his return to the court of appeals, on an appeal taken by the plaintiff to that court from an order of the general term.

The court at General Term, said: “In the matter of Townsend v. Nebenzahl, in the supreme court, Daniels, J., in a well-considered opinion delivered on that occasion, showed that no authority exists either in the parties, or their counsel, to compel the clerk to accept the return prepared for his certificate as it .may be presented to him, but that the clerk has a duty to perform in seeing to it that the return is a proper one, and that for that service he is entitled to charge the legal rate of fees, which is not less than five cents for each folio of the return. This rate is expressly allowed by section 3301 of the Code of Civil Procedure, and prob

ably was intended as a check upon frivolous appeals. The fact that the clerk of this court has no personal interest in the matter, but under section 3284, must-pay the fees so received into the city treasury, cons ti-, tutes only an additional reason for the enforcement of the statute. The case reported in 5 How. Pr. 12 , does not conflict with the foregoing views, for it simply holds that after a charge of five cents for every hundred words has been made, no additional charge for the certificate or for the signature to the certificate, can be made.”