
    CHARLES A. MALLORY and Others, Appellants, v. FREDERICK REICHERT, Defendant. PETER BOWE, Sheriff, etc., Respondent.
    
      Sheriff’s fees on a levy and sale — when the plaintiff may compel a taxation of them.
    
    Where, in pursuance of an execution issued upon' a judgment, a sheriff has levied upon and sold.goods of the judgment debtor, and claims to he entitled to retain a portion of the proceeds of the sale for his fees and charges, the plaintiff may-move at a Special Term to have the said fees and charges taxed. The right to make such a motion is not confined to the defendant.
    Appeal from an order made at a Special Term taxing the sheriff’s bill on an execution issued herein.
    
      P. W. Hcmlcesworth and William B. PanMne, for the appellants.
    
      Knox <£> McLean and Malcolm Graham, for the respondent.
   Davis, P. J.:

The execution in tbe suit of Mallory v. Reichert was issued to the sheriff, and by him levied upon the stock of goods of the defendant Reichert. On the subsequent sale of the goods they produced the sum of $3,488.39. The sheriff’s bill presented and claimed by the deputy, one Mark L' Prank, who had the execution in charge, amounted to $1,151.45. The plaintiff demanded a taxation of the bill, and on his motion it was taxed at Special Term, each party presenting a number of affidavits in relation to the several items charged. An order was made on such taxation allowing to the sheriff the whole amount charged, to wit, $1,151.45. From that order the plaintiff appeals. The counsel for the sheriff do not pretend to defend the taxation of this bill on any legal or other ground. On the contrary, they say: “We will not attempt to impose upon the court, since the decisions in McKeon v. Horsfall and Woodruff v. Imperial Fire Insurance Company, by insisting that all of these items are taxable if the court shall assume that a taxation, properly so-called, was before it.” They, however, undertake to claim that the taxation was one not authorized by law, and therefore that this court must either treat the proceedings as a mere arbitration and leave the parties in the position in which they have placed themselves thereby, or as wholly coram nonjudice, and a proceeding without jurisdiction, and dismiss the appeal without prejudice to an action.

The bill on its face is one which could not he sustained, even on the affidavits presented on behalf of the sheriff alone, for no court should allow, for instance, that the sheriff could employ under any circumstances twenty-one keepers at a time to watch over ,a stock of goods consisting chiefly of .empty paper boxes, especially after the Court of Appeals have decided that no charge for keepers can be taxed. (McKeon v. Horsfall, 88 N. Y., 429.)

, We think under the statute the plaintiff had a right to demand the taxation. The money had been made on the execution and was in the hands of the sheriff. - The plaintiff was entitled to have it paid to him, less the sheriff’s legal fees and charges; and although the statute, in speaking of -taxation, uses the words “ upon being required by the defendant,” we are of opinion that under the circumstances the plaintiff in the execution occupied that relation, as between bimself and tbe sheriff, in bis effort to defend bimself against extortion. In O'Connor v. O'Connor (47 Supr. Ct., 500), a case quite analogous with tbe present in its facts, tbe taxation was made on motion of tbe plaintiff.

In tbis case tbe motion for taxation was not made to “ any judge or officer of tbe court,” but to tbe court itself sitting at Special Term, and we see no reason wby it should not be lield tbat under its general jurisdiction over all actions pending in tbe court and after process issued therein, tbe Special Term as such bad authority to make tbe taxation in question. Neither party raised any question, as would seem, at tbe bearing of any want of power in tbe court.

Tbe order taxing tbe bill at tñe full amount claimed is in direct conflict with all the authorities of which we have any knowledge, and especially of Crofut v. Brandt (58 N. Y., 106); O'Connor v. O'Connor (47 Superior Court, 500); Lord v. Richmond (38 How. Pr., 173); McKeon v. Horsfall (88 N. Y., 429); Woodruff v. Imperial Fire Insurance Company (90 id., 521). Under these authorities large numbers of tbe items of tbe bill should have been rejected.

Inasmuch as tbe bill presented has received, in point of fact, no taxation or consideration of its items, we do not think it our duty to go through and determine what should or what should not have been allowed. The proper disposition of tbe case seems to us to be to reverse tbe order, with costs of tbe appeal to tbe appellant, and to remand tbe proceedings to tbe Special Term with directions to proceed and tax tbe bill in conformity to tbe several authorities above cited.

Ordered accordingly.

Bjrady and DaNiels, JJ., concurred.

Order reversed, with costs of tbe appeal to tbe appellant.  