66 How. Pr. 41 | N.Y. Sup. Ct. | 1883
— There must be judgment for the plaintiff on the demurrer. Section 709 of the Code of Civil Procedure recognizes the sheriff’s right to his costs and fees, notwithstanding the attachment has been set aside ; and until paid, he is not obliged to deliver the property to the defendant. This amounts to a lien in his favor upon the goods attached for the amount' of his fees. The action is therefore proper to enforce his lien by a sale of property, for otherwise the expense of detaining it, together with his fees, would exceed the value of the property.
Justice Potter has had the subject lately under consideration in a controversy between these parties, and by his opinion, a copy of which has been handed up, he expresses the views substantially above mentioned.
There must be judgment for the plaintiff on the demurrer, with liberty to defendants to answer on payment of costs.
