
    CASE a. PRICE.
    
      Supreme Court, Seventh District;
    
      Special Term, April, 1859.
    Costs.—Taxation.—Sheriffs’ Fees.
    Under subdivision 1 of section 307 of the Code—allowing to the plaintiff, costs at the rate of two dollars for each additional defendant upon whom process shall have been served—the plaintiff is not entitled to tax that item for any defendants who are unnecessarily made parties,—e. g., defendants in foreclosure not sought to be made personally liable, and who prove to have no claim on the mortgaged premises.
    The defendant, by omitting to take the objection to the misjoinder of improper parties by demurrer or answer, does not thereby waive his right to raise the objection on the taxation of costs.
    Upon taxing the costs, the defendant presented an affidavit that certain of the defendants were not proper parties; and the plaintiff presented an affidavit that none were made parties but those who, according to his best information and belief, and the search of the county clerk, appeared to have claims upon the premises.
    
      Held, insufficient to entitle the plaintiff to the charge of two dollars for each such defendant.
    The trustees of a corporation to whom mortgaged premises have been conveyed, are not proper parties to a foreclosure action within this rule, unless by the terms of the conveyance, an estate in the premises was vested in them.
    Although section 311 of the Code as amended in 1857, is more liberal in respect to disbursements than the former provision, which was the same in substance as 'that of the Revised Statutes, yet it should not be extended beyond such disbursements as are incident to the due and regular proceedings in the action.
    It is proper to allow a disbursement shown to be fair and necessary, for the service of summons and complaint, and notice of object of action, by a person other than the sheriff, but such disbursement should not exceed the limit of the sheriff’s fee for similar service.
    A party upon prevailing in the action is not entitled to tax witness’ fees for his own attendance as a witness on his own behalf.
    
    It is proper to allow as a disbursement, proper sums paid for necessary searches and copies of papers from the clerk’s office.
    
      The sheriff is entitled to a fee of fifty cents for every cause noticed for trial at a circuit, or placed on the calendar thereof for trial, and this fee is properly taxed as a disbursement.
    Appeal from taxation of costs.
    The action was for the foreclosure of a mortgage.
    After taxation of costs before the clerk upon entry of judgment for the plaintiff, the defendant’s attorney appealed to the court from the determination of the clerk in respect to the disbursements allowed.
    The facts are stated in the opinion.
    
      S. Mathews, for the motion.
    
      S. K. Williams, opposed.
    
      
       The same rule is held in the sixth district (Cornell a. Potter, 15 How. Pr. R., 278; Walker a. Russell, 7 Ante, 452, note); but the contrary in the fourth district (Logan a. Brooks, 8 Ante, 127), in the first district (Duerissle a. Hilliard, 3 Ante, 31), and in the New York Common Pleas (Rogers a. Chamberlain, 7 Ante, 452), As to the eighth district see Logan a. Thomas, 13 How. Pr. R., 160.
    
   E. Darwin Smith, J.

The first objection made before the taxing officer was, to the item of $82, for forty-one additional defendants, upon the ground that such defendants were not necessarily made parties. The defendant’s counsel presented to the clerk the affidavit of the defendant, stating that the only defendants who had any interest in the mortgaged premises, as subsequent purchasers or incumbrancers, were the Wayne County Collegiate Institute, a corporation incorporated by the regents of the university, to whom defendant had conveyed, as a site for an academy, a part of the mortgaged premises, and Robert B. Sutton, who holds a subsequent mortgage, and John Haight, who had recovered a judgment against him. The plaintiff’s attorney presented his affidavit, in which he stated that, from the best information derived from the clei’k by his official search, and according to his best information and belief, no persons were inserted or made defendants, except those who were necessary and proper parties, and that the number of such defendants was settled from said search, compared with a map of the village of Arcadia. This affidavit is hardly sufficient to justify the making of some twenty-eight persons parties, who had no liens upon, or were non-incumbrancers upon the mortgaged premises. In such cases, the plaintiff’s attorney is entitled to make all persons .parties defendants, who have apparent liens upon the mortgaged premises, or are subsequent grantees or mortgagees of any part or parcel thereof. But he should carefully see that the subsequent deeds or mortgages, executed by the mortgagor, and shown in the certificate of the county clerk, convey or cover some part of the mortgaged premises.

If the defendant’s affidavit is to be believed, none of the forty-one additional defendants, except the three above named, have any lien upon the mortgaged premises, unless the first trustees of the Wayne County Collegiate Institute were necessary or proper parties. The $2 for each additional defendant, besides the mortgagor, in foreclosure suits, should only be allowed for defendants necessarily made parties to the suit, and no person can be a necessary or proper party who is not a subsequent grantee of the mortgaged premises, or some part thereof, or has some lien, by judgment, decree, or mortgage, thereon. And it is not too late to raise this objection on the adjustment of the costs. .The plaintiff’s counsel is mistaken in the view, that the objection that unnecessary persons are made parties is waived, unless it is made by demurrer, so far as relates to this question of costs.

It also appears from the affidavit of the plaintiff’s attorney, that the above-mentioned conveyance, which the defendant Pierce states was made to the Wayne County Collegiate Institute, was in fact made to the “ first trustees of the Wayne County Collegiate Institute,” which the plaintiff’s attorney claims entitled him to make the first trustees parties individually, and that upon this ground fifteen persons were made defendants. If the conveyance was thus made after the incorporation of the Wayne County Collegiate Institute, or in contemplation of such incorporation, and it was expressly stated upon the face of the deed, that the conveyance was in trust or for the use of the corporation, as a site for an academy, no estate, legal or equitable, vested in the trustees, the legal estate therein being in the corporation (2 Rem. Stats., § 47, 49), and the trustees were unnecessary parties. But if no use or trust is declared in the deed, and the conveyance was absolutely to the trustees as mere cleseripto p&rsonarwm, of the grantees, without qualification, ¿trust, or restriction, the title then was in the trustees, and the first trustees were necessary and propel1 parties. Upon the papers before me, I cannot determine how the fact upon this point is, and shall leave the parties to make further proof before the clerk, upon the readjustment of the costs.

The next objection is to the item of $65, for service of summons on forty-two defendants. The affidavit of the plaintiff’s attorney, in respect to this item, states that “ the expenses for service on the said defendants were necessarily incurred, according to the registry kept by deponent, and according to his best knowledge and belief.” It is not claimed that this amount was paid for sheriffs’ fees, or that the service was rendered by any sheriff or sheriff’s officers. The charge is claimed on the ground of a disbursement made to some private person in the employment of the plaintiff’s attorney, and the claim, as I understood it on the argument, was, that a party, is entitled, on the adjustment of his costs, to claim for such services the full amount of sheriff’s fees as a disbursement paid to any person rendering the service. This claim I think entirely inadmissible and unfounded.

The statute has given to" sheriffs certain legal fees. These they are entitled to claim and charge in bills of costs, for such disbursements are proper. But no private person can claim sheriffs’ fees, and if the services which sheriffs may perform are performed by private persons, nothing more can properly be charged or allowed in the bill of costs than a reasonable compensation for the services rendered. Nothing can be allowed for constructive travelling or other services, in such cases. Section 311 of the Code provides, that “ the clerk shall insert in the entry of judgment, &c., the sum of charges provided, and the necessary disbursements including the fees of officers allowed by law. The disbursements shall be stated in detail and verified by affidavit.” This section, before the amendment of 1857, was the same in substance with 31 (20), of chapter 10, part 3 of the Revised Statutes, page 634. This provision was primarily intended (and was so limited by the courts before the Oode) to cover the actual disbursements of attorneys in the progress of suits, such as postages, express charges, exemplification of papers, and other similar expenses, incurred by attorneys in the necessary conduct of a case. o

Section 311, as amended in 1857, is more comprehensive, and should, I think, he construed more liberally than section 31 aforesaid of the Revised Statutes formerly was, yet it should not be extended beyond such disbursements as are incident to the due and regular proceedings in the action. It was not intended to cover the ordinary disbursements of the parties to suits. I agree with Judge 01 erke, in Calvert a. Finch (13 Hovj. Pr. 13), that, under the section before the amendment of 1857, the expenses of executing a commission in a foreign State, so far as the charges paid to the commissioners are concerned, should be allowed, and do not see why witnesses’ fees for attending before such commissioners should not be allowed. And in a case like this, when the law allows a specific fee to the sheriff, if the attorney employs a constable or some private person to perform the service, I think it proper, within the limits of sheriff’s fees, to allow as a disbursement the sum actually paid for serving the summons and complaint, and notice of the object of the suit.

But the affidavit showing the disbursement should also show the reasonableness of the charge, and that it is a fair, just, and proper' compensation for the time employed, and the distance travelled in making such service. From the papers before me, I should infer that most of the forty-two defendants, for serving upon whom this charge of $65 is made, were residents of the same village with the plaintiff’s attorney. If so, the charge of $65 must be quite an unreasonable and exorbitant compensation for the service of the summons and notice of object of suit in this action upon them respectively, as no compensation for travelling could be allowed in such case.

The next three items objected to are $28.35 and $28.24, charged for witness’ fees for the attendance of the plaintiff as a witness, on three several occasions, for the trial of the cause. This is not a disbursement of the attorney, nor within the intent of the statute, I think, in regard to the allowance for disbursements or witnesses’ fees. If the party may recover for witnesses’ fees for himself, I do not see where to stop, or what expenses of parties, incurred or paid in the ordinary prosecution or defence of their suits, may not be claimed and allowed as necessary disbursements. The Legislature never intended, I think, in allowing parties to be witnesses for themselves, to put them on a par with other witnesses in respect to witness’ fees, when they attend the trial to give evidence in their own favor. This would open a door to much abuse, which I should be unwilling to sanction till the Legislature so commands. On this point the judges of this district, at the last March general term, all concurred in the decision that witnesses’ fees were not recoverable by parties in such cases. This is an adjudicated question in this district. The objection to the sums paid for searches, and copy-papers from the clerk’s office and records, I think not well taken, the affidavit of the plaintiff’s attorney showing these items to have been necessary and proper within section 14 of title 4, chapter 10, part 3 of the Revised Statutes, page 651.

The charge of $1, for sheriff’s fees for two circuits, I think was properly allowed. The sheriff is, I think, entitled to a fee of fifty cents for every cause noticed for trial at a circuit court, or placed on the calendar thereof for trial.

The costs must be readjusted before the clerk, upon the principles above declared, and the respective parties may make such further proofs as they shall be advised in respect to the necessity for making the forty-one additional defendants parties to the action above mentioned, and also in respect to service of the summons in the action on such defendants, and the reasonableness of the disbursements therefor, and neither party to have costs on this appeal.  