Lockwood v. Fox

61 How. Pr. 522

• Court: New York Court of Common Pleas
• Decided: May 15, 1881
• Status: Published

Opinion

Per Curiam.

This is an appeal from an order of the special term taxing referees’ fees at fifty dollars. The action was brought to foreclose a mortgage, and was settled by the parties after advertisement and before the sale. It is apparent, from examination, that referees’ fees must be taxed, under chapter 569 of the Laws of 1869, as amended by chapter 192. of the Laws of 1874, unless a change has been made by the provisions of the Code of Civil Procedure (Schermerhorn agt. Prouty, 80 N. Y., 317). There was no direct repeal of the specified enactments by the repealing acts. The statute of 1869, being a local act, is, therefore, unaffected, by virtue of section 3308, Code of Civil Procedure, to which the attention of the learned justice in the court below could not have been directed. It reads as follows : “ The last section (regulating fees of sheriff), except the limitation of amount contained in subdivision eleventh thereof, does not affect any special statutory provision remaining unrepealed after this title .takes effect relating to the fees and expenses of the sheriff of the city and county of New T ork, or the sheriff of the county of Kings.

The fees of the referee should, therefore, have been taxed at ten dollars, the disbursements having been paid.

The order must be reversed, with ten dollars costs and disbursements.