
    JESSE HOYT, Plaintiff and Respondent, v. LEWIS W. PHILLIPS, Defendant and Appellant.
    On appeal from the taxation of a sheriffs bill of fees the appellate court will be controlled by the evidence before the taxing officer, and where no proof whatever is furnished by the sheriff, not even the usual affidavit required by law, the correctness of his charges will be determined upon the evidence furnished by the party objecting.
    Where an execution had been levied upon property sufficient to satisfy the judgment, and the judgment was compromised for less than the whole amount, held, that the sheriff was entitled to poundage upon the whole amount of the judgment. Held, also, that three dollars a day was a reasonable sum for watchmen.
    Before Monell, McCunn, and Freedman, JJ.
    
      [Decided March 9, 1869.]
   By the Court:

Monell, J.

This is an appeal from the taxation of a bill of the sheriff for fees, &c., upon an execution under which he had levied upon the defendant’s property. The judgment was after-wards compromised and satisfied by the defendant’s paying a little over half the amount thereof.

The papers furnished to us upon the appeal do not contain any proof whatever on the part of the sheriff of the correctness of the charges, not even the usual affidavit required by the statute (2 R. S., 653, § 7), and we must therefore decide this appeal upon the evidence furnished by the defendant before the taxing officer, and which are printed in the appeal papers.

We think the amount of poundage charged is correct. The fees of the sheriff are regulated by the Revised Statutes, and the case of Parsons v. Bowdoin (17 Wend., 14) was decided under those statutes, and supports the amount claimed in this case. The 243d section of the Code relates exclusively to judgments in attachment suits.

The correctness of the charge for watchmen’s fees must be tested by the evidence before us. The only proof is contained. in the affidavits of the defendant, and of his book-keeper and yard-keeper. Those affidavits are not disputed, and they show distinctly that twenty-four days is all that should be allowed for watchmen. Again, the defendant’s affidavits are our only means of ascertaining and determining the reasonableness of the per diem charged. Upon such evidence, three dollars per day for each watchman appears to be a fair amount; and as we must decide this appeal upon the evidence before us, we would not be justified in allowing any larger amount.

There are no levy fees, other than poundage. A fee of sixty-nine cents is allowed for returning an execution.

Upon the principles above stated and the facts, the taxation must be reversed, and the bill readjusted at the following rates fixed by the court, without again going before the taxing officer, viz.:

Poundage................................ $71 25

Two watchmen, 24 days each, at $3 a day each, 144 00

Returning execution....................... 69

$215 94

Deduct amount credited................ 40 00

$175 94

McCunn, J., dissented.  