Campbell v. Campbell

48 How. Pr. 255

• Court: New York Supreme Court
• Decided: October 15, 1874
• Status: Published

Opinion

Lawrence, J.

— The Eevised Statutes prescribe that the fees of commissioners appointed to make partition or admeasure dower shall be “ for every day’s actual and necessary service, two dollars to each commissioner ” (2 R. S., 643, § 2).

I do not think that the affidavits read, on behalf of the commissioners, show that the commissioners were actually and necessarily engaged seventy-five days in making the partition in this case; and it does not seem that such a length of service could have been required in the partition, of thirty-seven lots of land.

The act of 1869 does not avail the commissioners, because it has been declared to be unconstitutional by the court of ■ appeals (Gaskin agt. Meek, 42 N. Y., 188).

ISTo greater sum ean.be allowed to the commissioners than two dollars for each and every day’s actual and necessary service.

Objection has also been made to several items of disbursements claimed by the commissioners, on the ground that the same have not been properly verified, and have not been necessarily incurred.

These items must be verified, and the necessity of incurring them must be shown. -

The motion to adjust the fees and disbursements of the commissioners at the amount specified in -the schedule annexed to Mr. Smith’s affidavit is, therefore, denied, without costs, but with leave to renew on two days’ notice on further affidavits, showing in detail the number of days’ service actually and necessarily performed by each commissioner, and also showing the actual disbursements made by said commissioners.- ' .