
    In the Matter of the Application for an Order Directing the Sheriff to Pay over Certain Moneys Collected on a Judgment in an Action Entitled Harry P. Wendt, Appellant, v. John T. McCarrier and Ida McCarrier, Defendants. Adfred E. Smith, as Sheriff of New York County, Respondent.
    First Department,
    March 9, 1917.
    Judgment — evidence establishing payment to deputy sheriff on account of judgment — authority of sheriff to receive money as gratuity for services as custodian of property.
    A deputy sheriff has no legal right to receive money from a judgment debtor as a gratuity to compensate men he placed on the premises to protect the property.
    Motion for an order directing a sheriff to pay over certain moneys alleged to have been collected on a j udgment. Evidence examined, and field, to establish that a payment made by the son of the judgment debtor to a deputy sheriff should be applied on the judgment.
    Appeal by the plaintiff, Harry P. Wendt, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of May, 1916, denying his motion for an order directing the sheriff to pay over certain moneys alleged to have been collected on a judgment.
    
      Ralph M. Frink, for the appellant.
    
      George W. Olvany, for the respondents.
   Davis, J.:

On February 2, 1916, an execution was issued to the sheriff of New York county upon plaintiff’s judgment for $548.64 against the defendants. Thereafter keepers were installed as custodians of the property. On February 29, 1916, the execution was returned with the indorsement, “No personal or real property,” it having transpired that the furniture in question was incumbered by a chattel mortgage.

On February 24, 1916, a son of the defendant Ida McCarrier paid the deputy sheriff the sum of ninety-nine dollars and took from him the following receipt:

“Sheriff’s Office County of New York,

51 Chambers Street. New York, Feb. 24, 1916.

“Alfred E. Smith,

Sheriff.

“Walter T. Fitzsimmons,

Deputy Sheriff.

“Harry P. Wendt, Plaintiff,

“against

“John T. McCarrier and Ida McCarrier, Defendants.

“ Received from Ida McCarrier for Keeper Fees in above matter Ninety-nine Dollars 00/100 on condition of approval of Pltf’s attorney.

“WALTER T. FITZSIMMONS,

“Deputy.”

On May 15, 1916, the son who had paid the money to the sheriff made affidavit that the payment “was simply a gratuitous payment on behalf of his mother, to compensate the men whom the sheriff had placed hi their house as keepers to protect the property * * * and was not in any wise to he credited to the payment of any judgment in the above entitled action.” On the other hand, the defendant Ida McCarrier testified in supplementary proceedings that this money was paid for her on account of the judgment out of money received by her from a Mrs. Sinnott.

If the money was paid as a gratuity, the deputy had no legal right to receive it. If it was paid on account of the judgment,, it must be so applied. The credible evidence indicates that the payment was made by the son for the mother on account of the judgment, and it should be so applied.

The order denying the motion for an order directing the sheriff to pay over the ninety-nine dollars, less his proper fees and charges, on account of the. judgment herein, is reversed with ten dollars costs and disbursements, and the motion granted* with ten dollars costs.

Clarke, P. J., Soott, Smith and Page, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  