McKeon v. . Horsfall

New York Court of Appeals

McKeon v. . Horsfall

88 N.Y. 429, 1882 N.Y. LEXIS 121

CourtNew York Court of Appeals

DecidedMarch 21, 1882

StatusPublished

Cited by5 cases

This text of 88 N.Y. 429 (McKeon v. . Horsfall) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McKeon v. . Horsfall, 88 N.Y. 429, 1882 N.Y. LEXIS 121 (N.Y. 1882).

Pincite

Opinion

Danforth, J.

The- statute contains no provision for “ keepers’ ” or C£ auctioneer’s” fees. If the sherifE is entitled to them, the right must he enforced by action, and the amount fixed in some other way than by taxation. It is well settled that this method of adjustment applies only to such allowances as are prescribed by law, and can have no application to items, the amount of which depends upon agreement. (Downing v. Marshall, 37 N. Y. 380; Crofut v. Brandt, 13 Abb. Pr. [N. S.] 128; affirmed, 58 N. Y. 106; Germam, Amer. Bk. v. Morris Run Goal Co., 68 id. 590.)

The respondent cites Murtagh v. Conner (15 Hun, 488), in support of his claim for keepers’ fees. But there the question came up in an action upon an agreement, under which they were incurred. We are also referred to section 3307, sub. 7, of the Civil Code, which provides, that in addition to certain specific fees, “ where an execution is stayed after a levy, by order of the court or otherwise,” the sheriff shall be entitled to “ such additional compensation, for his trouble and expenses in taking care of and preserving the property, as the court or a judge thereof allows.” The case is not brought within these provisions, for the execution was not stayed, nor was any allowance made.

The order appealed from should be reversed with costs, unless the respondent stipulates to strike out the item of $108, for keepers’, and the item of $38.69, auctioneer’s commissions, in which case, as modified, it is affirmed without costs to either party.

All concur, except Andrews, Ch. J., absent.

Ordered accordingly.

Free access — add to your briefcase to read the full text and ask questions with AI

Danforth, J.

The- statute contains no provision for “ keepers’ ” or C£ auctioneer’s” fees. If the sherifE is entitled to them, the right must he enforced by action, and the amount fixed in some other way than by taxation. It is well settled that this method of adjustment applies only to such allowances as are prescribed by law, and can have no application to items, the amount of which depends upon agreement. (Downing v. Marshall, 37 N. Y. 380; Crofut v. Brandt, 13 Abb. Pr. [N. S.] 128; affirmed, 58 N. Y. 106; Germam, Amer. Bk. v. Morris Run Goal Co., 68 id. 590.)

The respondent cites Murtagh v. Conner (15 Hun, 488), in support of his claim for keepers’ fees. But there the question came up in an action upon an agreement, under which they were incurred. We are also referred to section 3307, sub. 7, of the Civil Code, which provides, that in addition to certain specific fees, “ where an execution is stayed after a levy, by order of the court or otherwise,” the sheriff shall be entitled to “ such additional compensation, for his trouble and expenses in taking care of and preserving the property, as the court or a judge thereof allows.” The case is not brought within these provisions, for the execution was not stayed, nor was any allowance made.

The order appealed from should be reversed with costs, unless the respondent stipulates to strike out the item of $108, for keepers’, and the item of $38.69, auctioneer’s commissions, in which case, as modified, it is affirmed without costs to either party.

All concur, except Andrews, Ch. J., absent.

Ordered accordingly.

Cite This Page — Counsel Stack

Bluebook (online)

88 N.Y. 429, 1882 N.Y. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckeon-v-horsfall-ny-1882.

Opinion

Related

Cite This Page — Counsel Stack