Filed Date: 11/9/1983
Status: Precedential
Modified Date: 7/5/2016
Joseph W. Sheehan, Esq. City Attorney, Mechanicville
Based upon your letter and telephone conversation with this office, you ask who is responsible for reimbursing a city marshall for expenses incurred in executing a warrant of eviction in a summary proceeding to recover possession of real property, and whether the marshall may request advance payment from the landlord-petitioner of any or all expenses required to execute the warrant. You also inquire whether the marshall's only duty in executing the warrant is to supervise the removal of the tenant and the tenant's property by the landlord or landlord's agent so as to assure a peaceable removal.
Civil Practice Law and Rules, §
"There shall be paid to the enforcement officer by the party requiring his services, the same fees to which a sheriff would be entitled for like services in supreme court." (Emphasis supplied.)
From this we conclude that the party requiring the services of the marshall, in this instance the landlord-petitioner, is responsible for advance payment of the fixed fee and for reimbursement of all expenses incurred by the marshall in executing the warrant and, in the discretion of the marshall, may be required to pay any or all of such expenses in advance (see, also, 1977 Op Atty Gen [Inf] 105; New York Civil Practice, Weinstein-Korn-Miller, Vol 8, § 8013.08, p 80-145 [1982]).*
In response to your final inquiry, section 749(1) of Article 7 of the Real Property Actions and Proceedings Law provides that upon rendering a final judgment for the petitioner, the court "shall issue a warrant directed to the * * * marshall * * * commanding the officer to remove all persons, and * * * to put the petitioner into full possession". It is inaccurate to state that the marshall's only duty under this provision is to "supervise" the removal of the tenant and his property by the landlord so as to assure peaceable removal, since there may be instances where removal cannot be effectuated in a peaceable manner thus requiring the marshall to remove the tenant and his property.
We conclude that the landlord-petitioner in a summary proceeding to recover possession of real property is responsible for reimbursing the city marshall for expenses incurred in executing a warrant of eviction and, in the discretion of the marshall, may be required to pay any or all expenses in advance. The marshall's duty to execute a warrant of eviction is not limited to supervising the landlord's removal of the tenant and his property.