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Wallace r. Abbott.

The relator brought an action against the trusices of school district No. 6, town of Gravesend, to recover the unpaid part of a year's salary, under an alleged contract of employment for that period, made between him and the trustees. The trustees, in their answer, put in issue the alleged contract. The relator recovered judgment in the action for $743.97 damages and costs, the costs in the jud,ment constituting about one-half the amount. There was, so far as appears, no direction or instruction of a district meeting that the trustees should defend the action, noc has the district in any way assumed any liability for the costs einbraced in the judgment, nor has any applicatio been inade by the trustees to the inhabitants of the district to have the costs and expenses audited or allowed. The relator seeks to enforce, by mandamus, the payment of the costs in the judgment out of funds of the district in the hands of, or under the control of the trustees. They have offered, and stand ready to pay the damages awardel in the judgment. It is clear that the school district cannot, under the circumstances disclosed, be compelled to pay the costs awarded against the trustees. The relator has a personal judgment therefor against the individual trustees, and the papers show that he has issued execution thoreon, but whether it has been returned does not appear.

It is unnecessary to determine whether the relator is entitled to retuin his julgment for costs, in view of the certificate granted by the judge after the costs had been taxed and the judgment entered. But, to enforce the pay. ment of the costs out of the funds of the district, would subject the district to a claim for which, as the case stands, it is in no way liable. The scheme of the statute is to make the trustees of school clistricts individually liable upon contracts sentered into in behalf of the district. For the purpose of the remedy by action they are treated as the individual contracts of the trustees. The district, in certain cases, is bound to indemnify the trustees. But the district owes no

Manhattan Co. o. Dunn.

duty, either to the trustees or to the other party to the litigation, to pay the costs of a litigation undertaken or carried on without its direction, until they shall have been audited and allowed in the manner pointed out by the statute.

The order of the special and general terms should, therefore, be reversed and the proceeding dismissed.

All concurred.





$3 791, subd 19, 793.

Preferred calondar— When case not put thereon, although defendant is in

custody under order of arrest.

Where a motion was made to place a cause upon the preferred calendar

on the ground that issue had been joined and the defendant was imprisoned under an order of arrest, and it appeared that issue was joined on September 29, notice of trial served by plaintiffs on November 19, and that, before the service of such notice of trial, no oriler placing the cause upon the preferred calendar had been served, and that no proceeding to prefer the cause was taken until

nine days thereafter,-Held, that the motion should be denied. (Duidel, December 8, 1887.)

Motion for an order placing this cause upon the preferred calendar of the court.

This motion was made after issue joined, on the ground that the defendant was imprisoned under an order of

Solomon v. Saqui.

arrest issued in this action. It appeared that the answer of the defendant raising an issue of fact was served on September 29, 1887; that, on November 19, the plaintiff served a notice of trial for the first Monday of December; that no order placing this action upon the preferred calendar was served before the service of the notice of trial; that, on November 28,-nine days after the notice of trial was served,—the defendant's attorney served notice of a motion to place the cause on the preferred calendar, returnable December 5, 1887. This motion arose upon said notice.

Silas M. Stilwell, for defendant and motion.

Stern & Myers, for plaintiff, opposed.

LAWRENCE, J.-Motion to prefer cause denied (see Robertson v. Schelhass, 62 Ilow. Pr. 490; Id. 495; Rule 36; and Code Civ. Pro. $ 791, subdivision 10; and 3 793).



$ 3287.

Sherif fees—– Taxation of.

The defendant in an execution is entitled to have the sheriff's fees for

selling property and collecting moneys thereunder taxed, notwithstanding the plaintiff in the execution assents to the charges; the fees are payable out of the proceeds of the property sold, and the approval of the person procuring the sale will not estop the former owner of

the property from questioning the accuracy of the sheriff's bill. (Decided December 17, 1887.)

Motion by defendant to compel a taxation by the sheriff of his bill of fees in selling property under execu

Solomon o. Saqui.

tion, made after demand for taxation and refusal to make the same.

The facts sufficiently appear in the opinion.

Solomon, Kantrowitz & Esberg, for defendant and motion.

Cochran & Clark, for sheriff, opposed.

MCADAM, Ch.J.-Under 3 R. S. (6 ed.) 924; Code Civ. Pro., $ 3287, the “sheriff, who, upon the collection of an execution,

claims any fees which have not been taxed, must, upon the written demand of the person liable to pay the same, cause them to be taxed.”

The sheriff herein, under an execution for $579.59, sold property of the defendants and realized $379.70. The fees and expenses charged aggregate $172.62. The plaintiff's attorney has assented to the bill, and the sheriff's counsel claims that, as the defendants are not settling the execution or paying the fees, and the amount realized is insufficient to satisfy the execution, the defendants are not entitled to have the fees taxed.

This construction of the law will not do. The fees come from the proceeds of sale of the defendant's property, and the net amount realized on the execution is, in law, a payment of the judgment pro tanto, leaving the balance, when ascertained, to be paid by the defendants when able. The judgment creditor only creclits the net anount received from the sheriff, and the defendants remain liable for the balance. It is unreasonable, therefore, to say that the defendants are not interested in the amount of the sheriff's bill.

The approval of the bill by the plaintiff's attorney may estop the judgment creditor from objecting to its accuracy, but it does not conclude the defendants, who, in reality, are the persons paying the sheriff's fees. Any other construction would impair, if not destroy, one of the evident

Hommeyer v. Beere.

purposes of the statutory provision before referred to. It matters not whether a judgment-deltor pays an execution in money or it is paid by means of a sheriff's sale of his goods. In either event, it is in legal effect a payinent by him, and whether the judgment is paid wholly or in part, the person making the payment is entitled, as of right, to have the fees of the sheriff taxed, to the end that the amount paid (less the legal fees) be credited upon the execution.

It follows that the defendants are entitled to have the sheriil's bill taxed. Application granted.




SS 66.

Attorney's lien— When satisfaction of judgment set aside on account of.

Where an attorney prosecuted an action for personal injuries for an

indigent client under an agreement that he-should have one-half of the recovery and costs for his services, and in the prosecution of the action paid out about $23 for disbursements and incurred $50 for the services of counsel, and, after recovery of judgment for $ 200 damages and $183 costs, received $50 on account thereof, and the plaintiff accepted from the judgment-debtor a note for $73, and, without the attorney's knowledge, executed satisfaction of the judgment,-Meld, on a motion by the attorney to set aside the judgment so that lie might

enforce his lien for compensation, that the motion should be granted. (Decided December 8, 1887.)

Motion to set aside and vacate a satisfaction of the judgment for $336.23 recovered herein by the plaintiff, either wholly or as to the extent of the plaintiff's attorney's lies thereon.

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