SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
July 2, 1969
AUDREY L. DE LIA, RESPONDENT,
B. WILLIAM DE LIA, APPELLANT
Appeal from portions of a judgment of the Supreme Court, Fulton County, entered October 2, 1968, upon a decision of the court at Trial Term, without a jury.
Gibson, P. J., Herlihy, Reynolds, Cooke and Greenblott, JJ., concur in memorandum Per Curiam.
Author: Per Curiam
Plaintiff was granted a divorce against the defendant on the ground of cruel and inhuman treatment. Appellant is challenging that portion of the judgment which awarded counsel fees to respondent's attorney in the amount of $7,500 and imposed taxable costs and disbursements of $1,061.15. In our opinion, the award of the $7,500 counsel fee is excessive. The record discloses that respondent's attorney has already been paid a substantial counsel fee of $3,000 in a separation action, based on the same grounds as the divorce action, and has never brought that action to trial (see Bitterman v. Bitterman, 256 App. Div. 990). Respondent admits that the money for this payment came either from her husband or his corporation. An additional sum of $5,000 is sufficient compensation in light of all the facts disclosed in the record. Respondent was also allowed, as part of the bill of costs, $421.90 as Sheriff's fees, pursuant to CPLR 8011 (subd. [b]) and 8012 (subd. [a]). Included in the above, and charged as taxable costs, was Sheriff's poundage of 5%. "As often stated, the sheriff's poundage is to be collected under the execution he holds. It is not to be taxed as costs of the action." (24 Carmody-Wait 2d, New York Practice, p. 592.) The only Sheriff's fees which can be allowed as costs here are $1.50 for entering the execution, $2.50 for levying upon property by virtue of an execution, and $4 proper mileage at 20 cents per mile from Johnstown to Northville, approximately 20 miles. Therefore, this part of the award must be reduced to $8. We have examined appellant's other contentions and find them to be without merit.
Judgment modified, on the facts, to the extent of reducing the counsel fee to $5,000 and the taxable costs to $647.25. As so modified, judgment, insofar as appealed from, affirmed, without costs.
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