
    The Egyptian Flag Cigarette Co., Appellant, v. Charles Comisky, Respondent.
    Appeal from a judgment rendered in favor of the plaintiff, for the' sum of $49.55, in the Municipal Court of the city of Eew York, second district, borough of Manhattan.
    P. Tillinghast, for appellant.
    Aaron Morris, for respondent.
   Freedman, P. J.

The following are the material facts in the case:.

On the 30th day of January, 1902, a judgment was rendered in the Municipal Court for the second district, for the borough of Manhattan, in an action brought by Solomon Emanuel against Egyptian Flag Cigarette .Company (the plaintiff in this action), for the sum of $69.50.

Thereafter execution was duly issued out of said court, to Charles Comisky, a marshal of the city of Eew York (the defendant in this action), for levy.

The said marshal duly levied upon the property of the defendant, in accordance with the provisions of said execution, and sold the said property, and realized from-the sale thereof the sum of $163, and out of the proceeds of the sale, satisfied the said judgment, amounting to the sum of $69.50, leaving a balance in his hands of $93.50, and this action was brought to recover the said balance remaining in his hands, after the satisfaction of said execution, less the amount of the fees and costs which the said marshal was entitled to, and judgment was demanded for the «inn of $90.50. The marshal was entitled to fees as follows: Poundage on the judgment, $3.47; making levy, $1; advertising, $1; attending sale, $1; mileage, 6 cents; total, $6.53. See Consol. Act, § 1710. The only question litigated on the trial was as to the right of the marshal to charge $36 for keeper’s fees, and the error of the justice in allowing $3 for advertising and 50 cents for making inventory.

The claim is made by the appellant herein that because section 1710 of the Consolidation Act provides that: “ the said marshals shall perform all other services required of them by law, without fees or compensation whatever, therefore) and no other fees, charges or compensation shall be allowed to, demanded or charged by any of said marshals.” The defendant herein is not entitled to recover for keeper’s fees unless it was shown upon the trial that the plaintiff herein (the judgment debtor in the execution), agreed to pay such fees.

This position seems to be well taken, and the defendant evidently took that view of the case upon the trial as he attempted to prove a direction on the part of the plaintiff herein (the defendant in the execution), to him to put a keeper in charge of the property. The testimony introduced for that purpose was to the effect that Emanuel (the plaintiff in the execution) claimed to be a representative of the judgment debtor in the execution, and as such representative gave the defendant herein the above-mentioned direction. This testimony was not only hearsay and incompetent but, Emanuel being the plaintiff in the prior action was hostile to the defendant therein (the plaintiff herein), and it does not appear that he had any authority to bind the plaintiff herein.

Section 1711 of the Consolidation Act provides that “All provisions of law in relation to the taking of property by sheriffs of counties shall apply to taking of property by the said marshals,” and section 3307 of the Code of Civil Procedure, subdivision 7, provides as to sheriff’s fees, that “ where a levy is upon a live animal, or speedily perishable property, such additional compensation, (shall be paid him) for his trouble and expenses in taking care of and preserving the property, as the court or a judge thereof allows.”

These sections, if applicable to this case, are not available to the defendant herein, as there is no claim made by him that his fees or compensation for taking care of the property in this action vfras ever fixed by a court or judge.

It follows, therefore, that the judgment must be reversed.

Gildebsleeve and MacLean, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant, to abide event.  