
    John R. Dos Passos and Edmund Francis Dos Passos, Appellants, v. The City of New York, Respondent.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Eight of sheriff of New York to' recover from the city the costs of an unsuccessful appeal in an action to collect fees.
    On an appeal from judgment dismissing the complaint in an action by the assignee of the sheriff of New York to recover from the city the costs of an appeal in an action to collect fees;
    Held, whether the liability to the sheriff be that of the county or city of New York it can be enforced by him, or his assignee, only against the city;
    That the statutory duty of the sheriff of New York to pay the fees to the city carries with it the duty to collect them;
    That though the statute provides that the sheriff’s salary and one-half of the fees of his office are “ in full for services and duties ”, yet this does not cover the reasonable expenses incurred by him in the performance of his duties;
    That the sheriff’s duty to collect the city’s revenue carries with it the implied promise of the city to reimburse him for reasonable expenses incurred therein;
    That the sheriff is the city’s agent in collecting its revenue; hence a judgment dismissing the complaint should be reversed.
    Appeal by the plaintiffs from a judgment of the Municipal Court of the city of Hew York, tenth district, borough of Manhattan, which directed the dismissal of the complaint.
    Action by the assignees of the sheriff of the city and county of Hew York, to recover the reasonable costs and disbursements incurred by him on appeal, in an unsuccessful effort on his part to collect poundage fees alleged to have accrued upon the levy of an attachment against property, for payment into the treasury of the city of Hew York, as directed by law.
    Edward C. Moen, for appellants.
    Theodore Connoly and Thomas F. Hoonan, for respondent.
   Bischoff, J.

It is to be noted that the claim in suit does not involve any demand for services alleged to have been performed by the plaintiffs’ assignor but is strictly for reimbursement of his reasonable expenses alleged to have been incurred in his efforts to collect certain fees of his office as sheriff of the county of Pew York, under an imposed statutory duty to collect the same and to pay such fees into the city treasury. The trial proceeded upon an agreed state of facts which are as follows.

In November, 1902, there was delivered to the plaintiffs’ assignor, William J. O’Brien, then sheriff of the city and county of Pew York, a warrant of attachment against the property of the International Power Company and Joseph H. Hoadley, which was issued in a pending action in the Supreme Court wherein they were defendants and John P. Plummer was plaintiff. "Under this warrant of attachment the sheriff levied upon property valued at $122,492.06. Later the plaintiff in that action consented to the release of the property levied upon, and an order to that effect was made by the court and entered, without notice to the sheriff. Thereafter the sheriff applied to the court for a taxation of his poundage fees, and an order was entered taxing the fees at $1,224.92, and directing payment thereof by the plaintiffs. Prom the last mentioned order the plaintiff appealed and in December, 1903, it was reversed by the Appellate Division with $89.07 costs and disbursements against the sheriff. 88 App. Div. 452. Having first duly requested the comptroller of the city to pay the costs and disbursements, and such payment having been refused, the sheriff assigned whatever claim for reimbursement he had, in his official capacity and otherwise, to the plaintiffs, who again presented the claim to the comptroller in writing, for payment, which was again refused. It was further agreed that there remained a balance of the appropriation duly made for the year ending December 31, 1903, for incidental expenses for the sheriff’s office and county jail, more than sufficient to pay the claim in full; and no question was raised as to the due presentment of the claim, the reasonableness of the amount, or the good faith of the sheriff in seeking to sustain his right to collect the poundage fees as taxed.

Whether the liability to the sheriff is that of the county, or city of New York, it could be enforced by him, or his assignees, only against the city. Matter of Vacheron, 51 App. Div. 182. Obviously, therefore, the sole question which is presented to us on this appeal from a judgment for the defendant directing the dismissal of the complaint is whether, or not, the plaintiffs’ assignor was entitled to be reimbursed for the costs and disbursements incurred by him in his unsuccessful effort to sustain the order taxing and directing the payment of his poundage fees.

The duty of the sheriff is to be ascertained from chapter 523 of the Laws of 1890, chapter 315 of the Laws of 1891, chapter 418 of the Laws of 1892, and chapter 477 of the Laws of 1894. These acts of the Legislature, taken together, are to the effect that all the fees collected by the sheriff and specified in section 17 of the Act of 1890, and section 3307 of the Code of Civil Procedure, including poundage fees for the levy of an attachment_ against property, shall be paid by him monthly into the city treasury at which time also he is required to transmit to the comptroller of the city a sworn statement of his account of the fees collected. The duty to pay the fees to the city necessarily carries with it the' duty to collect them. Upon approval of the sheriff’s account by the comptroller, the latter is required to pay the former his proportion of such fees, one-half, which the sheriff is to receive in part payment for his services. Nowhere is it prescribed that his salary or proportion of the fees collected and paid into the city treasury is also to cover the reasonable expenses incurred by him in the performance of his duties. Quite to the contrary. It is expressly provided that he shall receive a salary of $12,000 per annum and one-half of the fees of his office in full for services and duties ” only.' The duty to collect and account for his fees to the city necessarily carries with it the implied promise of the city to reimburse, the sheriff for the reasonable expenses incurred by him in the collection of the city’s revenue, and it was so ruled in People ex rel. Wood v. Denton, 41 App. Div. 386. In the case alluded to, the sheriff of Nassau county was held to be entitled to recover from the county his actual traveling expenses incurred in the performance of his official duties which, among other things, required him to collect a mileage of six cents per mile and to pay the same, when received, into the county treasury. That case, also, is authority for the plaintiffs’' contention that in the sheriff’s efforts to collect fees for payment to the city he was acting as the agent of the city, that he was for the time being engaged in the city’s business of collecting its revenue, and that the sheriff’s act was the city’s act. True, it was not specifically ruled that the constitutional provision against the liability of the county for the sheriff’s acts (Const. N. Y., art. X, § 1) did not apply, but we are to assume that the court did not overlook the provision alluded to, and the direction certainly is to the effect stated.

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

Freedman, P. J., and Fitzgerald, J., concur.

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