Harry Scherl, Appellant, v. Herman L. Flam, as a City Marshal of the City of New York, Respondent

Harry Scherl, Appellant, v. Herman L. Flam, as a City Marshal of the City of New York, Respondent. Second Department, March 4, 1910. Replevin — levy on goods under execution—assignment of judgment immaterial — costs — increased costs on judgment in favor of city marshal — no increased costs on appéal — practice — application to court — appeal — irregularity in judgment. A judgment in favor of a city marshal who was sued in replevin hy the owner of goods levied upon hy him on execution will not he reversed merely because after the levy the judgment upon which the execution was issued was assigned to a third person not a party to the action. Where a. city marshal is successful in such action he is entitled to increased costs under section 3.83 of the Municipal Court Act, being a public officer appointed under the authority of the State, He is not, however, entitled-to increased costs of appeal, as no right thereto, is conferred by said section. Qucere, as to whether it is necessary to apply to the court for an allowance of increased costs under section 388 of the Municipal Court Act. But even if there was a failure to make such application, the court may allow the costs nunc pro 'tunc. A failure to insert in a judgment of replevin an alternative provision allowing a return of the goods is a mere irregularity which may be cured on appeal without reversing the judgment. .. Appeal by the plaintiff, Harry Scherl, from a judgment, of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant. David Uirshfield, for the appellant. Samuel W. Phillips, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : 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 riot 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 zdoes not afford such costs to State officers, but to any public officer appointed or elected under the authority of the State, andi 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, becausfe 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. Jbnks, Burr, Thomas, High 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.