
    Thomas W. Farrin v. Jonathan Creager et al.
    (No. 6,779.)
    On the purchase by the plaintiff of a five year leasehold, with privilege of purchase, under proceedings in foreclosure of a mortgage, the sheriff is not entitled to poundage.
    Special Term. — On motion to retax costs.
    In this case, the plaintiff held a mortgage executed by the defendant Creager, upon a leasehold estate, having connected with it, a right of privilege to purchase the fee. The lease was only for five years, and the inference is, though not stated in the pleading, that the privilege to purchase only continued with the lease. The plaintiff' brought his action to realize upon his security. He obtained an order for the .sale of the lease, with the right to purchase, it being the object to assign both to the purchaser, and such a course having obviously been within the intention and contemplation of the parties in giving and taking the security.
    A sale is made by the sheriff under the order of the court) and the plaintiff is himself the purchaser. The only question made is as to the fees or poundage of the sheriff'.
    
      Theophilus Gaines, and Snow & Bradstreet, for plaintiff.
    
      Mills & Hoadly, for the sheriff.
   Gholson, J.

The sheriff claims that there was a sale merely of personal property, and that the law governing sales of real estate, where the plaintiff is the purchaser, does not apply. I do not think so, but on the contrary, that this case, if not within the letter strictly, is within the spirit and intent of the statute, and that its provisions must apply and govern.

Poundage refused.  