Nelson v. Bischoff — 1 Silv. Sup. 329

Majority

p. 329

Samuel K. Nelson, Appellant, v. Magdalena Bischoff et al., Respondents.

N. Y. Supreme Court, Second Department, General Term,

May 13, 1889.

Headnote

Sheriffs fees. Where taxed.—By section 3287 of the Code, a motion to tax the fees of a sheriff cannot be made outside of his county; and, upon seasonable objection in such ease, the judge must refuse to proceed with the taxation; but proceeding without objection is. a waiver.

This is an action of replevin. The sheriff of Richmond county took and held possession of the property until an order of discontinuance of the action was served upon him. Nearly four years afterwards the sheriff presented his bill for his fees to plaintiff’s attorney, and noticed it for taxation before a justice of the supreme court at his chambers in the city of Poughkeepsie. An order was made taxing and allowing the said bill, and from this order plaintiff appeals.

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J. D. VanHovenberg, for respondents.

—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 fake place in another connty, and the validity of the judgmentrendered 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.