
    Manhattan Railway Company, Respondent, v. Francis Merges, Appellant.
    
      Oity marshals in New York city—their fees on collecting a'personal tarn.
    
    Section 1710 of the Consolidation Act (Laws of 1882, chap. 410) which states “ fees shall he allowed to the said city marshals for services rendered under the provision of this title as follows,” and further provides that marshals shall receive certain fees “for serving and levying an execution,” applies only to-executions issued out of the District Courts of the former city of New York, and not to warrants for the collection of personal taxes issuued hy a receiver of taxes of that city, under section 853 of the same act.
    This view is emphasized by a provision of section 854 of the same act, to the effect that where the receiver of taxes shall proceed by distress and sale of the goods and chattels of any person for the payment of any tax due and payable,' it shall be lawful for him to authorize and empower the officer making such distress and sale to collect, in addition to the tax and interest thereon, the costs of such distress, and sale, it being evident that this provision would not have been inserted had it been intended to treat the warrant as an execution arid to . ' permit the same fees upon its enforcement as are allowed for serving and levying an execution — it being also further provided by section 1710 that the fees therein allowed are all that the marshals shall demand or charge, and that they shall perform all other services required of them by law without any fee or compensation whatever.
    
      Semble, that under section 927 of the charter of the present city of New York (Laws of 1897, chap. 378) re-enacting and amending section 854 of the Consolidation Act, the marshals are now entitled to charge as fees upon the collection ' of a personal tax, five ■ cents for every dollar collected, to the amount of one hundred dollars, and two and one-half cents for every dollar collected over one hundred dollars.
    Appeal by the defendant, Francis Merges, from a judgment of the Supreme Court in favor of the qolaintiH, entered in the office of the clerk of the county of New York on the 29th day of Octo- ’ her, 1898, upon the decision of the court after a trial before the • court without a jury at the New York Trial Term.
    
      George E. Mott, for the appellant.
    
      Herbert Barry, for the respondent.
   Barrett, J. :

• This appeal presents but a single question of law. That is whether the defendant, a City marshal, was authorized to take from • the plaintiff $7,416.73 as fees, upon the collection of a personal tax, amounting to $296,569.23, under a warrant issued in January, 1896, by the receiver of taxes of the former city of New York. The tax was for the year 1895. The warrant directed the defendant “ to levy the amount of the tax set opposite to the names in the above schedule mentioned, with interest thereon at the rate of seven per cent per annum from the first day of October, in the year 1895, to the time when the same shall be paid, by distress and sale of the goods and chattels” of the present plaintiff. Armed with this warrant, the defendant, on the 29th day of April, 1896, called at the plaintiff’s office and had an interview there with its auditor. The following admission as to what then transpired appears in the record : “ The auditor thereupon placed upon a desk the sum of $296,569.23 in cash, and in another pile alongside of the first pile, the sum of $7,416.73 in cash. The secretary of the plaintiff then stated to the defendant that this money belonged to the Manhattan Railway Company, and such was the fact, and that the plaintiff and the secretary protested against any seizure of any of this money as unlawful and unwarranted. The defendant then stated that, pursuant to authority vested in him as Marshal of the city of New York, and under the warrant, a copy of which is in evidence, annexed to the complaint, which was under seal received from the Receiver of Taxes, he seized this money in payment of taxes due by the' Manhattan Railway Company, for personal taxes for the year 1895, with interest and costs; and the Marshal thereupon removed and took away with him the two sums of money aforesaid.” No question is presented as to the legality of the defendant’s act with regard to this tax. The suit is limited to the recovery of the $7,416.73 which he claimed and took as his lawful fees upon the collection of the tax.

.At the time when this transaction took place, the proceedings were governed by the Consolidation Act (Laws of 1882, chap. 410). The defendant concedes that the only provisions of law authorizing the taking of the sum in question are those contained in sections 1710 and 854 of this act. Section 1710, however, both in its letter and spirit, applies only to executions issued out of the District Courts of the city, and not to warrants for the collection of personal taxes issued by the receiver of taxes under section 853 of the same act. ■ The first words of section 1710 are. these “ Fees shall be allowed to the said marshals for services rendered under the provisions of this-title, as follows:” Now the - title • in ' question relates to these District Courts," and the only services which can -be rendered thereunder áre those relating to process in actions in those •courts. There is nothing in the title relating to the services .under consideration! • When, therefore, the same section (1710) provides that marshals shall receive certain fees for serving and levying an execution,” it plainly contemplates an execution in the usual sénse of that word; that is, an ordinary-execution issued by a District 'Court upon, one of - its judgments'. This is emphasized by the provision of section 854 to the effect -that where the receiver of taxes -shall proceed by distress and !sa-le of -the goods and chattels of any person for the payment of any tax due and payable, it shall.bé lawful for him to authorize and empower the officer making such distress and sale to collect, in addition to thé tax and interest thereon, the costs of such distress' and sale: It stands .to reason that this provision would not have been inserted if the intention had "been to treat- the warrant as an execution, and to permit the same fees upon its enforcement as are allowed for serving and levying an -execution. Section 1710 also provided that thé fees therein allowed were all that the- marshals' should demand or charge ; and it expressly directed that they should perform all other services required of them by law without-any fees or compensation whatever, .thus recognizing the common-láw rule on the subject.

Heré, it will be observed, there was no distress and sale. ' The marshal simply took the money laid out for him. But even if there had been a distress and sale, the receiver of taxes did not, as he was authorized to do by section 854 (supra), empower the marshal to' ■ collect, in addition to the tax and interest thereon, the costs of such distress and sale-. And these costs, even if allowed, would -only have been the expenses to which the marshal was put in' making, the •distress and sale. We notice that in the charter of the present city of New York, the Legislature- has .provided that the costs .of such distress and sale shall be, in addition- to any disbursements, five- cents for every dollar collected to the amount of one hundred dollars;, and two and one-half cents for every dollar collected over one hundred •dollars. (Laws of 1897, chap. 378, § 927.) This latter section is a re-enactment of' section 854 of the Consolidation Act, amended by thus defining such costs and authorizing their collection. It is quite •evident that the amendment was thus engrafted upon the old section because the latter, as it stood, did not authorize such fees. Under this section 927 of the present charter, the marshals are now entitled fo charge the fees which the defendant took upon the warrant in question. But they were not authorized to make such charges under the law as it previously existed.

It follows, that the taking by the defendant of the sum in question in April, 1896, was not then authorized by law, and, therefore, the judgment for its restoration was right and .should be affirmed, with costs. •

Van Brunt, P. J., Rumset, Patterson and Ingraham, JJ., •concurred.

Judgment afiirmed, with costs.  