Class-Wheeler, Inc. v. Roma Contracting Corp.

8 A.D.2d 939, 190 N.Y.S.2d 505, 1959 N.Y. App. Div. LEXIS 7680

Opinion

Appeals (1) by the judgment debtor, from so much of an order of the City Court of Yonkers as allows in part a Deputy Marshal’s claim in the total amount of $2,687 for expenses allegedly incurred for moving, storage, and repair of property in his custody pursuant to levy upon issuance of an execution on a judgment in the amount of $2,105.50, and (2) by the judgment creditor and Deputy Marshal (as limited by their brief), from so much of said order as disallows in part said claim. Order modified (a) by striking from .the first ordering paragraph everything beginning with the words “ disallowed as ” and ending with the figure “ $873.50 ” and by substituting therefor the words and figures “ allowed in the amount of $247.60 of which amount, fifty (50%) per cent thereof, or $123.80 ”, and (b) by striking from the second ordering paragraph the figures “ $873.50 ” and “ $421.50 ” and by substituting therefor the figures “ $123.80 ” and “ $1,171.20 ” respectively. As so modified, order affirmed, with $50 costs and disbursements, payable by respondents-appellants to appellant-respondent. No proof at all was offered in support of the claim of the Deputy Marshal of reasonable expense necessarily incurred by him (Nestor v. Bischoff, 123 N. Y. 517, 519; Waite v. Kaldenberg Co., 19 App. Div. 379, 380; Depew v. Solomonowitz, 48 App. Div. 512, 513, 514). On the contrary it was shown that the Deputy Marshal knew nothing at all about the alleged expenses as he had permitted an officer of the judgment creditor carte blanche in the disposition of the property. The allowance of $247.60 is granted because the judgment debtor, on this appeal has conceded that that sum was reasonable for transportation of the seized equipment to the place of storage. Nolan, P. J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.