(dissenting). ;- ¡This appeal involves the question as to whether plaintiff may recover of the defendants the sum of $1,247.25 paid by the plaintiff herein to the sheriff as poundage under an attachment procured by the defendants herein as plaintiffs against the plaintiff herein as defendant in a prior action. The City Court held, in effect, that the poundage paid to the sheriff did not constitute an item of damage recoverable by the defendant in the prior action, but was to be regarded as an item of taxable costs in said prior action. In reversing the City Court the Appellate Term held that the plaintiff was entitled to recover as damages the total amount paid to the sheriff for fees.
*449This action was brought in City Court to recover damages alleged to have been suffered by plaintiff by reason of a wrongful attachment in an action brought against the plaintiff by the R. C. Maxwell Company. At the trial of the prior action in which the attachment was issued, at the close of the entire case, the court granted the motion of the defendant therein (plaintiff here) for the direction of a judgment in its favor, with costs, and judgment was thereupon entered. The parties then entered into a stipulation that, in consideration of the waiver by the defendant in that action (plaintiff here) “ of its costs and disbursements taxable by the clerk upon the entry of judgment in its favor dismissing the complaint herein, * * * the plaintiff [R. C. Maxwell Company] hereby waives its right to appeal from such judgment.” It is claimed that a construction was placed upon said stipulation by the parties in letters exchanged between them. Under date of April 25, 1932, the attorney for the plaintiff here (defendant in the prior action), among other things, states: “ I told you that at the time the suggestion was made I had in mind only the ordinary taxable costs, which I then supposed to be in the neighborhood of $125 to $150. Later, I was informed that my client had paid $1,247.25 poundage and $889 for a bond to lift the attachment; and also that the bond given by the Surety Company on attachment was in the sum of $2,250. I stated to you that I did not intend at any time to waive the claim against R. C. Maxwell Company or the Surety Company for damages occasioned by the attachment. To that position I adhere.
“ Enclosed you will find a stipulation for the entry of the judgment without taxable costs, i. e., costs taxable by the clerk on entry of judgment, and for the waiver of right to appeal.
“ If you now agree with me on the form of this stipulation and will sign it, and also will have R. C. Maxwell Company sign the stipulation and acknowledge it, I will sign the duplicate and enter the judgment accordingly.”
To this letter the attorney for the defendant (plaintiff in the prior action), under the same date, April 25, 1932, replied as follows: “ Replying to your letter of April 25th and the enclosures received this afternoon, pursuant to our telephone conversation I have inserted in your proposed stipulation after the word ‘ costs ’ in the fifth fine the words ‘ and disbursements.’ With this addition, I am forwarding the stipulation to be signed by the Maxwell Company with the request that Mr. Maxwell acknowledge the same as President of the R. C. Maxwell Company and promptly return the original to me.
“ In the ordinary course I should receive this stipulation back by Wednesday morning. We shall then sign the stipulation as *450attorneys for the plaintiff and forward the copies for execution by you as attorneys for the defendant.”
It is evident from the letter written by the plaintiff’s attorney that he thought the poundage and premiums on the bond were damages, and that his client could recover the same in the prior action. The plaintiff’s attorney, however, does not expressly say that that is so. He merely requested the attorney for the defendant to agree on the form of the stipulation and sign it. To this the defendant’s attorney, without in any way construing the stipulation, replied that he had added the words “ and disbursements ” and is procuring the same to be signed as so amended. Of course, the addition by the defendant’s attorney of the words “ and disbursements ” did not alter the meaning of the stipulation. In a judgment, “ taxable costs ” include necessary disbursements, and under section 1518 of the Civil Practice Act, subdivision 10, “ such other reasonable and necessary expenses as áre taxable according to the course and practice of the court or by express provision of law.” If the premium on the bond to release the attachment and the sheriffs’ poundage were classifiable as costs, they cannot be recovered because, under the stipulation of the parties, taxable costs were waived. The defendant moved in City Court for judgment on the pleadings and for the dismissal of the complaint upon the theory that the premium was not an item of damage, but an expense voluntarily incurred by the plaintiff for its own convenience. On plaintiff’s appeal to the Appellate Term that court stated in its memorandum: “'The premium plaintiff'paid is neither costs nor damages and cannot be recovered.” The defendants, however, contend that the Appellate Term erred in holding, notwithstanding the stipulation entered into by the parties, that the plaintiff was entitled to recover the amount paid to the sheriff for fees. The letter written by the attorney for the plaintiff to the defendant’s attorney, however, did not construe the stipulation, and the defendant did not acquiesce therein. Had such been the case, then the defendant would have been bound by his acquiescence and the plaintiff would have been entitled to recover the premium paid to the surety company as an item of damages. Both the City Court and the Appellate Term agreed that that would be improper. The City Court held that the stipulation between the parties “ must be construed * * * according to its express terms.” Section 907 of the Civil Practice Act provides that “ The undertaking to be given on the part of the plaintiff, before the granting of the warrant, shall be to the effect that if the defendant recovers judgment, or if the warrant is vacated, the plaintiff will pay all costs which may be awarded to the defendant and all damages which he may sustain *451by reason of the attachment, not exceeding a sum specified in the undertaking, which must be at least two hundred and fifty dollars.”
Since the cases hold that if the defendant recovers judgment, poundage is recoverable under such an undertaking without indicating whether it is to be recovered as damages or costs, the question is here clearly presented whether the sheriffs’ fees on attachment are “ costs ” and, therefore, waived under the stipulation entered into by the parties, or are recoverable as damages.
We are of the opinion that the fees paid to the sheriff are to be regarded as costs rather than damages. These fees are a charge payable 'to an official acting for the court. Court fees are never regarded as damages, but as costs. Fees due a sheriff for receiving and returning an execution under subdivision 8 of section 1518 of the Civil Practice Act are specifically entitled to be included in a bill of costs. Under the course and practice of the courts, sheriffs’ fees on attachment are also recoverable, and we think are to be regarded, not as damages, but as costs, within the provisions of subdivision 10 of section 1518, to wit, as “ such other reasonable and necessary expenses as are taxable according to the course and practice of the court,” and constitute an item properly taxable by the clerk as costs. The parties having stipulated waiving “ costs and disbursements taxable by the clerk,” the fees paid to the sheriff could not properly be included in the judgment.
We are of the opinion, therefore, that the determination of the Appellate Term should be reversed, with costs, and the judgment and order of the City Court affirmed, with costs to the defendants, appellants, against the plaintiff, respondent.
Untermyer, J., concurs.
Determination affirmed, with costs and disbursements.