91 N.Y. 374 | NY | 1883
There is very little but a matter of form involved in this appeal. The county treasurer, by the judgment, which, for the purposes of the motion, must be assumed to be the law of this case, is authorized to docket judgments against all the stockholders, for the maximum amount of their possible liability, and to collect thereon, by execution against each defendant separately, enough to satisfy the claims of the creditors and their costs. He is also authorized out of his payments to retain his lawful commissions. Consequently, in issuing his executions, he would be entitled, for the purpose of providing enough to pay the creditors, to include therein the commissions thus authorized to be retained. The judgments he was authorized to docket were for nearly double the sum of $133,475.22, found due to creditors. He was authorized to collect by execution, not any specific sum, but enough to pay the creditors, with costs and interest. His legal commissions were, therefore, a proper addition to be made to the execution to be issued in each case.
The plaintiff had no right to include these commissions in his bill of costs. They depended on the amount the county treasurer might collect, and they belonged to him, to be taken out of the money which might come into his hands. There is no more propriety in including these commissions in the plaintiff's bill of costs than there would be in embracing therein the poundage of the sheriff on the anticipated execution.
It cannot be that the judgment contemplated the taxation of this item of commissions by the plaintiff as costs, for it required the treasurer, after retaining his own commissions out of his collections, to pay the taxed costs of the action, and of the *377 creditors who had proved their claims, and then to divide the residue among the creditors. It is clear the commissions were not intended to be included in the bill of costs of the plaintiff's attorney. We think, therefore, that the court at General Term decided correctly in excluding these commissions from the plaintiff's bill of costs. We feel constrained also to sustain the decision of the General Term as to the items of disbursements for printing the referee's report, opinion, the interlocutory and final judgment, disallowed by them. This printing, it was claimed, was requested by the attorneys for some of the defendants, and directed by the referee. Such items are taxable only when required by a rule of the court. (Code, § 3256.)
The order of the General Term should be affirmed, with one bill of costs to respondents.
All concur, except DANFORTH, J., taking no part.
Order affirmed.
