38 120 a167a539 FIRST DEPARTMENT, MARCH TERM, 1899. [Vol. 38. MANHATTAN RAILWAY COMPANY, Respondent, v. FRANCIS MERGES, City marshals in New York city—their fees on collecting a personal tax. Section 1710 of the Consolidation Act (Laws of 1882, chap. 410) which states "fees shall be allowed to the said city marshals for services rendered under the provision of this title as follows," and further provides that marshals shall receive certain fees "for serving and levying an execution," applies only to executions issued out of the District Courts of the former city of New York, and not to warrants for the collection of personal taxes issuued by a receiver of taxes of that city, under section 853 of the same act. This view is emphasized by a provision of section 854 of the same act, to the effect that where the receiver of taxes shall proceed by distress and sale of the goods and chattels of any person for the payment of any tax due and payable, it shall be lawful for him to authorize and empower the officer making such distress and sale to collect, in addition to the tax and interest thereon, the costs of such distress and sale, it being evident that this provision would not have been inserted had it been intended to treat the warrant as an execution and to permit the same fees upon its enforcement as are allowed for serving and levying an execution it being also further provided by section 1710 that the fees therein allowed are all that the marshals shall demand or charge, and that they shall perform all other services required of them by law without any fee or compensation whatever. Semble, that under section 927 of the charter of the present city of New York (Laws of 1897, chap. 378) re-enacting and amending section 854 of the Consolidation Act, the marshals are now entitled to charge as fees upon the collection of a personal tax, five cents for every dollar collected, to the amount of one hundred dollars, and two and one-half cents for every dollar collected over one hundred dollars. APPEAL by the defendant, Francis Merges, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of October, 1898, upon the decision of the court after a trial before the court without a jury at the New York Trial Term. George E. Mott, for the appellant. Herbert Barry, for the respondent. BARRETT, J.: This appeal presents but a single question of law. That is whether the defendant, a city marshal, was authorized to take from App. Div.] FIRST DEPARTMENT, MARCH TERM, 1899. the plaintiff $7,416.73 as fees, upon the collection of a personal tax, amounting to $296,569.23, under a warrant issued in January, 1896, by the receiver of taxes of the former city of New York. The tax was for the year 1895. The warrant directed the defendant "to levy the amount of the tax set opposite to the names in the above schedule mentioned, with interest thereon at the rate of seven per cent per annum from the first day of October, in the year 1895, to the time when the same shall be paid, by distress and sale of the goods and chattels" of the present plaintiff. Armed with this warrant, the defendant, on the 29th day of April, 1896, called at the plaintiff's office and had an interview there with its auditor. The following admission as to what then transpired appears in the record: "The auditor thereupon placed upon a desk the sum of $296,569.23 in cash, and in another pile alongside of the first pile, the sum of $7,416.73 in cash. The secretary of the plaintiff then stated to the defendant that this money belonged to the Manhattan Railway Company, and such was the fact, and that the plaintiff and the secretary protested against any seizure of any of this money as unlawful and unwarranted. The defendant then stated that, pursuant to authority vested in him as Marshal of the city of New York, and under the warrant, a copy of which is in evidence, annexed to the complaint, which was under seal received from the Receiver of Taxes, he seized this money in payment of taxes due by the Manhattan Railway Company, for personal taxes for the year 1895, with interest and costs; and the Marshal thereupon removed and took away with him the two sums of money aforesaid." No question is presented as to the legality of the defendant's act with regard to this tax. The suit is limited to the recovery of the $7,416.73 which he claimed and took as his lawful fees upon the collection of the tax. At the time when this transaction took place, the proceedings were governed by the Consolidation Act (Laws of 1882, chap. 410). The defendant concedes that the only provisions of law authorizing the taking of the sum in question are those contained in sections 1710 and 854 of this act. Section 1710, however, both in its letter and spirit, applies only to executions issued out of the District Courts of the city, and not to warrants for the collection of APP. DIV.- VOL. XXXVIII. 16 FIRST DEPARTMENT, MARCH TERM, 1899. [Vol. 38. personal taxes issued by the receiver of taxes under section 853 of the same act. The first words of section 1710 are these: "Fees shall be allowed to the said marshals for services rendered under the provisions of this title, as follows." Now the title in question relates to these District Courts, and the only services which can be rendered thereunder are those relating to process in actions in those courts. There is nothing in the title relating to the services under consideration. When, therefore, the same section (1710) provides that marshals shall receive certain fees "for serving and levying an execution," it plainly contemplates an execution in the usual sense of that word; that is, an ordinary execution issued by a District Court upon one of its judgments. This is emphasized by the provision of section 854 to the effect that where the receiver of taxes shall proceed by distress and sale of the goods and chattels of any person for the payment of any tax due and payable, it shall be lawful for him to authorize and empower the officer making such distress and sale to collect, in addition to the tax and interest thereon, the costs of such distress and sale. It stands to reason that this provision would not have been inserted if the intention had been to treat the warrant as an execution, and to permit the same fees upon its enforcement as are allowed for serving and levying an execution. Section 1710 also provided that the fees therein allowed were all that the marshals should demand or charge; and it expressly directed that they should perform all other services required of them by law without any fees or compensation whatever, thus recognizing the common-law rule on the subject. Here, it will be observed, there was no distress and sale. The marshal simply took the money laid out for him. But even if there had been a distress and sale, the receiver of taxes did not, as he was authorized to do by section 854 (supra), empower the marshal to collect, in addition to the tax and interest thereon, the costs of such distress and sale. And these costs, even if allowed, would only have been the expenses to which the marshal was put in making the distress and sale. We notice that in the charter of the present city of New York, the Legislature has provided that the costs of such distress and sale shall be, in addition to any disbursements, five cents for every dollar collected to the amount of one hundred dollars, and two and one-half cents for every dollar collected over one hundred FIRST DEPARTMENT, MARCH TERM, 1899. App. Div.] It follows that the taking by the defendant of the sum in question in April, 1896, was not then authorized by law, and, therefore, the judgment for its restoration was right and should be affirmed, with costs. VAN BRUNT, P. J., RUMSEY, PATTERSON and INGRAHAM, JJ., concurred. Judgment affirmed, with costs. NATIONAL UNION BANK OF READING, Respondent, v. JACOB RIGER and ELLEN RIGER, Appellants. Receiver in a creditor's suit — when his appointment is not justified. An unverified complaint in a creditor's suit, brought not on behalf of other creditors similarly situated, but for the plaintiff alone, alleging the recovery of a judgment and the return unsatisfied of an execution thereon, and a conveyance of real property by the debtor to his wife, without adequate consideration, with intent to defraud his creditors, and asking that the conveyance be declared void as against the plaintiff and that the real property be sold to pay the judgment, supported by affidavits tending to establish the fraud, does not (there being no allegation therein as to the rents and profits of the debtor's interest in the property during the fifteen months of his possession thereof after a sale under execution) authorize the appointment of a receiver of such rents and profits under section 1877 of the Code of Civil Procedure. Where in such a case it is not shown that the property is likely to be injured or destroyed, or that the equity therein is insufficient to satisfy the plaintiff's judgment, which is, therefore, adequately protected by the lis pendens, a receiver of the property should not be appointed under subdivision 1 of section 713 of that Code. APPEAL by the defendants, Jacob Riger and another, from an order of the Supreme Court, made at the New York Special Term [Vol. 38. FIRST DEPARTMENT, MARCH TERM, 1899. and entered in the office of the clerk of the county of New York on the 24th day of January, 1899, appointing a receiver pendente lite of certain real estate. The action is a creditor's action to set aside a conveyance of such premises made by the defendant Jacob Riger to the defendant Ellen Riger. Rudolph F. Rabe, for the appellants. Henry G. Atwater, for the respondent. BARRETT, J.: The plaintiff sues as a judgment creditor of the defendant Jacob Riger. In its complaint it alleges the recovery of a judgment for $872.57 against Jacob Riger; the return of an execution thereon unsatisfied, and a conveyance of real estate by Jacob Riger to his wife, the defendant Ellen Riger, without adequate consideration and with intent to hinder, delay and defraud his creditors. This complaint was not verified, and the application for a receiver was made before answer. The application was founded upon affidavits tending to show the fraud alleged in the complaint; and it was opposed by Mrs. Riger, she making an affidavit in which she asserts that the conveyance to her was bona fide. The plaintiff does not sue for itself and other creditors similarly situated. It sues solely on its own behalf, and its prayer for relief is that the conveyance to Ellen Riger be declared fraudulent and void as against it, and that the premises be sold to pay its judgment. It is not clear that the purpose of the action is to remove a fraudulent obstruction to the plaintiff's execution. As the plaintiff avers the return of an execution unsatisfied, and as it prays for a sale of the premises under the decree of the court, it apparently proceeds against its debtor's property generally. If that is its purpose, it can accomplish the result sought only through a conveyance to a receiver, coerced from the debtor and his grantee by the decree which it hopes to obtain. It is true that, if the trial court ultimately finds the conveyance from Jacob to Ellen to be fraudulent as against the plaintiff, it may, notwithstanding the form of the action, simply remove the obstruction and permit the plaintiff to issue a new execution and sell thereunder the debtor's right, title and interest in the property. It may, how |