Opinion
March 4, 1910.
David Hirshfield, for the appellant.
Samuel W. Phillips, for the respondent.
This is an action in replevin by the alleged owner of goods, against a city marshal, who had levied on the goods under an execution. The plaintiff's first judgment was reversed by this court ( 129 App. Div. 561), and his second judgment also (133 id. 274). We cannot see that the plaintiff's case upon this appeal justifies a disturbance of this judgment, which is for the defendant. The only feature in the plaintiff's case that is entirely new is the introduction of an assignment of the judgment upon which the execution was issued, made a year after this levy, to a third party, who is not a party to this action and who is legally a stranger to the parties thereto.
We think that the defendant was entitled to the increased costs afforded by section 333 of the Municipal Court Act. The statute does not afford such costs to State officers, but to any public officer appointed or elected under the authority of the State, and a city marshal is appointed under authority of the State, expressed in a statute thereof. (Greater N.Y. Charter, § 1424 et seq.) In Jones v. Gray (13 Wend. 280) it was held that a constable was entitled to double costs under a provision of the Revised Statutes similar to that now under consideration (2 R.S. [ed. of 1836] 512) under the authority of Wales v. Hart (2 Cow. 426). (See, too, Waring v. Acker, 1 Hill, 673.) But we think that such an officer is not entitled to such increase of the costs of appeal. It is to be noted that the increased costs afforded by the said section 333 refer specially to the costs enumerated in section 332 of the Municipal Court Act, which does not provide for costs of appeal. The earlier authorities which extend such increased costs to costs on appeal, pursuant to section 3258 of the Code of Civil Procedure, do not make for this contention, because section 3258 refers specifically to section 3251 (just as section 333 of the Municipal Court Act refers to section 332 thereof), which does embrace costs on appeal. And, moreover the costs on appeal provided for in the Municipal Court Act are specifically prescribed by sections 345 and 346 of the Municipal Court Act, without mention or reference to increased costs. As the defendant cannot point to the statute which affords such increased costs on appeal, his contention must fail. (See McKuskie v. Hendrickson, 128 N.Y. 555.) It is also insisted that the defendant should have applied to the court, pursuant to section 3248 of the Code of Civil Procedure. Nichols on New York Practice (p. 2993) says: "Though there are cases holding that the increased costs may be taxed by the clerk without application to the court, yet the safer practice is that fixed by the earlier cases which hold that an application to the court is necessary." It is not essential to decide this question, inasmuch as the defendant may even now apply nunc pro tunc to the court for such certificate. ( Snyder v. Beyer, 3 E.D. Smith, 235.) The omission to provide an alternative provision of the judgment for a return of the goods is but an irregularity which may be cured on appeal without ordering a reversal of the judgment. ( Fitzhugh v. Wiman, 9 N.Y. 559; Wolf v. Farley, 40 N Y St. Repr. 808, and authorities cited.)
The judgment is modified by inserting an alternative provision for a return of the goods, and with respect to the costs as indicated, and as so modified it is affirmed, without costs.
JENKS, BURR, THOMAS, RICH and CARR, JJ., concurred.
Judgment of the Municipal Court modified by inserting an alternative provision for a return of the goods, and with respect to the costs as indicated, and as so modified affirmed, without costs.