Wait v. Schoonmaker

15 How. Pr. 460

• Court: New York Supreme Court
• Decided: January 15, 1858
• Status: Published

Opinion

Hogeboom, Justice.

Sheriffs, when required to serve summonses and complaints, and certain other papers, are entitled to demand payment of their fees previous to such service. (2 Rev. Stat. 651; Code, § 419.) But in this case, the sheriff performed the service without demanding prepayment of his fees. He cannot, therefore, refuse to return the papers for that reason, especially as he does not allege the non-payment of his fees for making a return as an excuse for not complying with the notice, and does not show how much his fees were on that account. Having waived the right of prepayment, he must make a proper return of the papers served. As the question is new, and his practice was adopted on legal advice, and he swears to good faith, and the plaintiff’s attorney appears not to have paid the fees, though notified in November last, I shall not impose costs on the sheriff, and shall give him ten days after notice of the order, to return the papers, in default of which an attachment may issue. Let such an order be entered.