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Schlesinger v. Smith

New Jersey Superior Court, Appellate Division


Decided: July 1, 1977.

LEONARD J. SCHLESINGER, PLAINTIFF-RESPONDENT,
v.
ROBERT SMITH, DEFENDANT-APPELLANT

Lora, Crane and Michels.

Per Curiam

[151 NJSuper Page 265]

This is an appeal from a judgment of the Essex County District Court in an action by a landlord to evict the defendant tenant. Although the judgment of eviction was stayed, defendant appealed from that part of the order which required him to pay the constable's fee of $25.

Appellant contends that the statutes governing the county district courts do not allow for the taxing of such a fee. We agree. N.J.S.A. 22A:2-38 deals specifically with the fees to be paid to constables and sergeants-at-arms by the clerk of the county district court. The fee provided by the statute for execution of a warrant for possession is $2. That fee is by specific statutory direction to be paid by the clerk of the county district court to the constable or sergeant-at-arms out of the fee paid to the clerk pursuant to N.J.S.A. 22A:2-37. We find no authorization for the imposition of a fee in the amount of $25. We construe N.J.S.A. 22A:4-8, which provides for a fee of $25 for the execution of a writ of possession, to have no application to county district courts. That section applies solely to the allowance of fees to sheriffs and other officers for the service and execution of process issuing out of the Superior Court or County Court.

Accordingly, that part of the order of the Essex County District Court which directs defendant to pay a constable's fee of $25 is reversed.

19770701


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