The statute contains no provision for "keepers'" or "auctioneer's" fees. If the sheriff is entitled to them, the right must be enforced by action, and the amount fixed in some other way than by taxation. It is well settled that this method of adjustment applies only to such allowances as are prescribed by law, and can have no application to items, the amount of which depends upon agreement. (Downing v. Marshall, 37 N.Y. 380;Crofut v. Brandt, 13 Abb. Pr. [N.S.] 128; affirmed, 58 N.Y. 106; German Amer. Bk. v. Morris Run Coal Co., 68 id. 590.)
The respondent cites Murtagh v. Conner (15 Hun, 488), in support of his claim for keepers' fees. But there the question came up in an action upon an agreement, under which they were incurred. We are also referred to section 3307, sub. 7, of the Civil Code, which provides, that in addition to certain specific fees, "where an execution is stayed after a levy, by order of the court or otherwise," the sheriff shall be entitled to "such additional compensation, for his trouble and expenses in taking care of and preserving the property, as the court or a judge thereof allows." The case is not brought within these provisions, for the execution was not stayed, nor was any allowance made.
The order appealed from should be reversed with costs, unless the respondent stipulates to strike out the item of $108, for keepers', and the item of $38.69, auctioneer's commissions, in which case, as modified, it is affirmed without costs to either party.
All concur, except ANDREWS, Ch. J., absent.
Ordered accordingly. *Page 432