FIRST DEPARTMENT, JULY TERM, 1890. [Vol. 8. order giving legal effect upon the recrods of the court to the plaintiff's withdrawal. The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the first attachment granted, with ten dollars costs. Present-BARRETT, RUMSEY, PATTERSON and INGRAHAM, JJ. Order reversed, with ten dollars costs and disbursements, and motion to vacate the first attachment granted, with ten dollars costs. CHARLES R. SICKLES, Respondent, 7. THOMAS CANARY, Appellant, Impleaded with Others. Mortgage foreclosure— receiver of rents—proof required, that the property is of insufficient value. In order to justify the appointment of a receiver of mortgaged premises, there must be evidence of the insufficiency of the property to satisfy the mortgage, and in the absence of such evidence the court is not justified in taking the property out of the possession of the mortgagor pending the foreclosure action. An affidavit of the attorney for the plaintiff, in which he states that he was informed by the plaintiff that it was extremely doubtful whether the mortgaged premises would sell upon a foreclosure, subject to certain incumbrances mentioned, for enough to pay the amount due upon the plaintiff's mortgage, is not sufficient. APPEAL by the defendant, Thomas Canary, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of July, 1896, appointing a receiver of the rents of the premises described in the complaint, pendente lite. Joseph C. Rosenbaum, for the appellant. Jonathan C. Ross, for the respondent. PER CURIAM: There was no proof before the court below to show that the mortgaged premises were insufficient security to pay the mortgage debt. The only affidavit upon the subject of the value of the property was App. Div.] FIRST DEPARTMENT, JULY TERM, 1896. the affidavit of the attorney for the plaintiff, in which he says that he is informed by the plaintiff that it is extremely doubtful whether the mortgaged premises will sell at a foreclosure sale, subject to the incumbrances mentioned, for enough to pay the amount of the mortgage to the plaintiff. There is nothing to show that the plaintiff had any knowledge as to the value of the premises or upon what he based his statement, nor is the belief of the plaintiff's attorney evidence of the fact. The rule is well settled that, to justify the appointinent of a receiver of mortgaged premises, there must be some evidence of the insufficiency of the property to satisfy the mortgage, and in the absence of such evidence the court is not justified in taking the property away from the possession of the mortgagor pending the foreclosure action. As to the value of the property, the defendant swears positively that it is worth at least $100,000, and that statement is not denied except by a communication of the plaintiff to his counsel, not under oath. We think, therefore, that the appointment of a receiver was unauthorized, and the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for a receiver denied, with ten dollars costs. Present BARRETT, RUMSEY, PATTERSON and INGRAHAM, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. WILLIAM S. RIDABOCK, Appellant, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and THE MANHATTAN RAILWAY COMPANY, Respondents. Costs - a copy of stenographer's minutes, used to prepare amendments to a case on appeal, is taxable in the first department. In the first department the amount paid for a copy of the stenographer's minutes, obtained for the purpose of properly preparing amendments to a case on appeal, is a taxable disbursement. Rule 32 of the General Rules of Practice, requiring a party proposing amendments to a case to "refer at the end of each amendment to the proper page of such minutes," compels the party who proposes amendments to procure the stenographer's minutes; consequently such a disbursement is "necessary" within the meaning of section 3256 of the Code of Civil Procedure and is taxable with the costs. FIRST DEPARTMENT, JULY TERM, 1896. [Vol. 8. APPEAL by the plaintiff, William S. Ridabock, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of July, 1896, denying his motion for a retaxation of costs. The action was the customary action against the elevated roads for an injunction and damages. The plaintiff obtained a judgment from which the defendants appealed to the Appellate Division, where it was affirmed. Upon the taxation of costs, the clerk refused to allow the plaintiff to tax the amount paid for the stenographer's minutes, used in preparing amendments to the defendants' case on appeal. S. T. Cannon and Wilfrid N. O'Neil, for the appellant. Julien T. Davies and Wm. II. Lyons, for the respondents. PER CURIAM: The rule in this department is, that the amount paid for a copy of the stenographer's minutes, obtained for the purpose of properly preparing amendments to the case on appeal, is a taxable disbursement. (Sebley v. Nichols, 32 How. Pr. 182; Cutter v. Morris, 7 N. Y. St. Repr. 426; Stevens v. N. Y. El. R. Co., 31 id. 404.) The cases contra deal mainly with minutes obtained for use upon the trial. It is said, however, in Pfaudler Co. v. Sargent (43 Hun, 154) that the stenographer's fees are not taxable even when procured for the purpose of enabling a party to prepare amendments to a case. This was not necessary to the decision of that case, and it seems to overlook rule 32 of the General Rules of Practice, which provides that, "If the party proposing the amendments claims that the case should be made to conform to the minutes of the stenographer, he must refer at the end of each amendment to the proper page of such minutes." The respondent is thus practically compelled to procure the stenographer's minutes if he desires a fair and truthful record. He can only obtain this by complying with the rule. Thus the rule in substance makes the disbursement "necessary * * * according to the course and practice of the court," as provided in section 3256 of the Code of Civil Procedure. The appellant here presented an affidavit to the clerk to the effect that "the copy of the App. Div.] FIRST DEPARTMENT, JULY TERM, 1896. stenographer's minutes was actually and necessarily obtained and used for the purpose of preparing the amendments of plaintiff to the defendant's proposed case on appeal herein." Under the circumstances, we think the item should have been allowed. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion for a retaxation granted, with ten dollars costs and the item allowed. Present BARRETT, RUMSEY, PATTERSON and INGRAHAM, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. MARTIN LEHMAN, Respondent, v. LEWIS MAYER, Defendant; EDWARD J. H. TAMSEN, as Sheriff of the County of New York, Appellant. Replevin — a sheriff cannot be compelled to take property from one not a party to the action. A sheriff should not be compelled to execute a requisition of replevin and to take into his possession property which is in the possession of persons who are not parties to the action nor to the motion to compel such action on his part, and who are not shown to be the agents of the defendant or in anywise connected with him. APPEAL by Edward J. H. Tamsen, as sheriff of the city and county of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of June, 1896, requiring him to execute a requisition of replevin, and to take certain property into his possession. Benjamin N. Cardozo and Burritt S. Stone, for the appellant. B. F. Einstein, for the respondent. PER CURIAM: The only party defendant to this action was Lewis Mayer. Ruscher & Muller, in whose possession the tobacco which is the subject of the action was, are not parties to the action, and there is nothing FIRST DEPARTMENT, JULY TERM, 1896. [Vol. 8. in the papers upon which this motion was made tending to show that they are agents of the defendant, or have any connection with him whatever. The requisition upon the sheriff authorizes the taking of the property only from the defendant named in the action, or his agent. It is no protection to him if he takes the property from any other person. (Otis v. Williams, 70 N. Y. 208; Bullis v. Montgomery, 50 id. 352.) Ruscher & Muller being neither parties to this action nor to the motion, the order to the sheriff requiring him to take the property from their possession would be no protection whatever to him in an action brought by them for the trespass which he must necessarily commit in executing against their property process which had been delivered to him against the property of another person. There is nothing in the facts shown upon this motion, from which it can be inferred that the proceeding was taken under chapter 633 of the Laws of 1895, and consequently the provisions of that statute need not be considered. No foundation was laid for the granting of such an order, and it must be reversed, with ten dollars costs and disbursements. Present― BARRETT, RUMSEY, PATTERSON and INGRAHAM, JJ. In the Matter of the Judicial Settlement of the Accounts of J. LEE HUMFREVILLE, One of the Executors of the Estate of MARY J. HAVEMEYER, Deceased. EDWARD KENT and WILLIAM R. WILCOX, as Executors, etc., of MARY J. HAVEMEYER, Deceased, Appellants, v. J. LEE HUMFREVILLE, Respondent. Executors and administrators — commissions awarded to an executor subsequently removed the remedy is by appeal, not by motion. it is not an "error in fuct not arising upon the trial." Where a surrogate has refused, on an application therefor, to remove an executor, and his decision is subsequently reversed upon appeal, but in the meantime the executor has accounted and has been allowed his commissions, the remedy is by appeal and not by motion. |