
    In the Matter of the Application of Edward J. H. Tamsen, as Sheriff of the City and County of New York, Respondent, to Tax Fees and Disbursements upon Executions Issued against Max Oppenheimer and Henry Rosenheim, as against W. & J. Sloane, Appellant, and Others, Such Application Being Entitled in the Following Actions in the said Supreme Court for New York County, Amelia Meinhard, Plaintiff, v. Max Oppenheimer and Henry Rosenheim, Defendants; and Emma Oppenheimer, Plaintiff, v. Max Oppenheimer and Henry Rosenheim, Defendants.
    Sheriff— the Supreme Court cannot, upon his application, tax his fees on executions issued out of the City Court of New York —' application of Code Civ. Proa. § 8287.
    The Supreme Court has no jurisdiction-, upon the application of a sheriff, -to make an order assuming to tax the fees to which the sheriff is entitled for levying an execution issued, out of the City Court of New York.
    The power, to tax sheriff’s fees conferred on the Supreme Court by section 8287 of the Code of Civil Procedure cau be exercised only upon the written demand of the person liable to pay the fees.
    Appeal by W. & J. Sloane from an order of the Supreme Court,made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 24th day of September, 1897, taxing the fees and disbursements of the sheriff.
    
      Selden Bacon, for W. & J. Sloane, execution creditor, appellant.
    
      Charles S. Kingsley, for the sheriff, respondent.
   Ingraham, J.:

There were two actions commenced in the Supreme Court, brought by Amelia Meinhard and Emma Oppenheimer against Max Oppenheimer and Henry Rosenheim, which resulted in judgments in favor of the plaintiffs, and upon which, on February 3, 1897, executions were issued to the sheriff.' Subsequently, and on or about the fifteenth and sixteenth days of February, executions against the property of the defendants were issued upon judgments entered in the City Court of the city of Hew York, one.in favor of Charles Weinberg, execution issued February 15, 1897; one in favor of Lewis W. Hyde, Jr., execution issued February 16, 1897, and one in favor of W. & J. Sloane, the appellant, execution issued February 16,1897. The sheriff took possession of the property of the judgment debtors under these executions, and on February 25, 1897, sold such property, realizing therefrom- the gross sum of $7,328.75. From the. money thus received the sheriff satisfied the executions received by him prior to February 16, 1897, and the execution of Lewis W. Hyde, Jr., received by him upon that day, leaving the balance of the proceeds of such sale in his hands, after deducting his fees, and disbursements, to be applied upon the execution., issued upon the judgment obtained by W. & J. Sloane, the appellant. The W. & J. Sloane ; judgment was for $1,423.81. The sheriff presented a bill for fees and disbursements of $1,410.40, leaving a balance in hand of $258.07. Sometime after the sale, before the expiration of- the sixty days when the sheriff was bound to return the execution issued on the Sloane judgment, the sheriff offered this sum of $258.07 to the attorney for W. & J. Sloane as the amount applicable to -the payment of its judgment,: which sum the said attorney refused to receive. The matter, apparently, was there allowed' to rest until the expiration ©f the sixty days, during which the sheriff was authorized to retain the execution:. Then an action was commenced against the sheriff for a failure to return said execution, in which the sheriff interposed an answer. Subsequently the ¡sheriff made a motion before the City Court to' tax his fees, which was denied, whereupon the sheriff presented his bill entitled in the two actions in which judgment was entered in .this .court, and gave ■notice of application to a justice of the Supreme Court at a Special-Term to have said bill taxed and allowed. A copy of this bill, with such application for taxation, and the affidavits upon which it was founded, was served upon the appellant W. & J. Sloane. Upon the return of that notice, W. & J. Sloane, as judgment «’editor, appeared and tiled objections to the bill, first, however, taking the point that, as it had made no application in writing to have the bill taxed, neither this court nor a justice thereof, had any power to tax the bill. The objections on behalf of W. & J. Sloane were overruled, and an order of the court entered taxing the bill and. allowing the sum claimed by the sheriff. From that order of the Special Term of the Supreme Court W. & J. Sloane appealed.

We think that .the Supreme Court had nothing to do with the taxation of the sheriff’s bill, and that the order entered, was entirely unauthorized. The only actions or proceedings in the Supreme Court were the two actions in which the executions were issued to the sheriff on February 3, 1897, which two executions had been fully satisfied by the proceeds of the sale of the jn’operty seized by the sheriff under the executions. These two judgment creditors had no interest in the taxation of this bill of costs, as their executions had been fully satisfied; and so far as appears by the record they neither had notice of the application, nor did they appear before the court upon the taxation. The amount of their executions had been paid an d the judgments obtained by them had been satisfied. As to them, it was entirely immaterial whether the sheriff’s bill was taxed or' not, and they had no interest in the controversy between W. & J. Sloane and the sheriff as to the amount of his fees, Eo objection was made by either of such judgment creditors to the application of the proceeds of the sale for that purpose, and the sheriff had been fully discharged from all responsibility to them. Eo necessity existed for ' an application to the Supreme Court to protect such judgment creditors, and no application appears to have been made as to them. Of the. executions issued out of the City Court, all but the one issued upon the judgment obtained by W. & J. Sloane had been satisfied ; and the only ones interested in the adjustment of the sheriff’s fees were W. & J. Sloane, whose judgment had been obtained in the City Court, and whose execution had been issued out of that court. The Special Term of the Supreme Court had no concern with the issuance of that execution or the proceedings under it. It was a process of the City Court; and whatever motion was to be made in relation to that execution or to the proceedings under it was necessarily to be made in the court from which it was issued and which had control of the proceedings under the judgment. The order of the Supreme Court, therefore, assuming to tax the sheriff’s fees or to determine any controversy as between W. & J. Sloane under the judgment entered in the City Court and the execution issued thereupon was entirely unauthorized and should not have been granted. Nor can that order be upheld as a taxation of the sheriff’s bill by a justice of the Supreme Court. ■ It is clear that a justice of the Supreme Court has no power to tax a sheriff’s bill upon an execution issued out of another court unless such power is expressly given to him by statute. The only authority under which it is attempted to uphold this order is that contained in section 3287 of the Code. It is there provided that each sheriff who, upon the collection of an execution, claims any fees which have not been taxed, must, upon the written demand of the person liable to pay the same, cause them to be taxed within the county upon notice to the person making the demand by a justice of the Supreme Court or the county judge. The authority of a justice of. the Supreme Court under this section to tax a sheriff’s bill is conditioned upon the written demand of" the person liable to pay the fees Where such demand is made, the sheriff must cause his fees to be taxed before a justice of the Supreme Court' or a' county judge, and the section provides that after such demand is made the sheriff cannot collect his fees until they have been taxed. •. But this provision is for the benefit .of the person who has to pay .the fees and not for the benefit of the sheriff. The sheriff has the property or its proceeds in his hands, and he has the power to either satisfy his fees or hold the property in his hands until the same are paid without any taxation. If his bill for fees, as presented by him, is not objected to by the creditor, he lias' ample power to collect it. If such bill is objected to by the creditor, he must demand in writing that it be taxed, and then the sheriff is bound to have it taxed in the way provided by the section cited. The necessity of such a taxation only arises when the creditor objects' to the sheriff’s bill; and, in order to make that objection effectual, the person liable to pay the fees- must serve- upon the sheriff a written demand that such ■ fees be taxed, but, until such demand is made, the sheriff’s bill as presented is presumed to be acceptable to the judgment creditor, -or person who is bound to pay it. In this case the sheriff had the proceeds of the sale of the property levied upon under the executions in his hands, and he had the right to apply the proceeds to the payment of his fees and disbursements. If the creditor refused to receive the balance of such proceeds after the payment of the sheriff’s bill, he had simply to return the execution, crediting the amount in his hands which the creditor had refused to accept, and then wait until the judgment creditor served the notice required by law, to require the sheriff to have his bill taxed. The sheriff saw lit to simply retain the execution, which rendered him liable to an action by the judgment creditor for-a failure to return the execution as required by law, but with that action the court had nothing to do except to try it upon the pleadings.

We think, therefore, that the order appealed from was entirely unauthorized, and that it should be reversed, with ten dollars costs and disbursements, and the application denied, with ten dollars costs.

Van Brunt, P. J., Williams and Patterson, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and application denied, with ten dollars costs.  