• On this record as it comes before us, it is apparent that the sherill’s charges for keeper’s fees were improperly allowed. The receiver took possession, of the property of the .defendant on or about the 'fth of April, 1893; he made an inventory and put .two persons employed by him in charge of the property. It would seem that the sheriff’s claim for the fees of the three persons said to have been employed by-him as keepers is-for services of such keepers, subsequent to the receiver taking possession. There is no satisfactory proof of any kind, as against this receiver, that the sheriff’s alleged keepers were ever in possession after the receiver took the.' property, or ¡that they actually rendered any service in watching or taking care of that property.- That those three persons recovered judgments against the sheriff for services as keepers does not affect the matter in any way. Those judgments are not binding upon the receiver, nor-is the. fact that the sheriff merely levied prior to the appointment of the receiver decisive of the matter. The right to charge' keeper’s fees does not-result,.f ram- a levy, but from-necessary or proper services .duly proven to have been rendered. On these papers we have no other course to. pursue than to reverse the Order, but, under all the circumstances of the case, we'think that the executrix of the sheriff should have an opportunity to present her claim fully to the court, and for that reason the order will be reversed, with costs, with permission to make a new. motion on-proper papers, and on payment of costs of the motion in the court below and of the appeal in this court.
Van Brunt, •' P. J., Williams, O’Brien and Ingraham, JJ., concurred. '
Order reversed, with costs, with leave to make a new motion on ' proper papers, and on .payment of costs of motion-and of appeal.