179 A.D. 371 | N.Y. App. Div. | 1917
Lead Opinion
The order appealed from involves the right of the sheriff of New York county to retain property attached until poundage is paid, where the attachment was vacated on consent, the stipulation reciting “ that the plaintiff has no cause of action against the defendant under the facts set forth in the complaint or otherwise and that he desires to withdraw the action brought.” It is - undisputed “that no consideration of any sort passed from the defendant to the plaintiff, directly or indirectly, in consideration of the discontinuance of this action or the making of this stipulation.”
It. follows that the order so far as appealed from authorizing the sheriff to retain the property of the defendant was unwarranted and must be reversed, with ten dollars costs and disbursements to the defendant.
. Clarke, P. J., Scott and Davis, JJ., concurred; Laughlin, J., dissented.
Dissenting Opinion
I am of opinion that the provisions of chapter 418 of the Laws of 1892 (amdg. Laws of 1890, chap. 523, § 17) and of section 3307 of the Code of Civil Procedure, as amended by chapter 565 of the Laws of 1915, providing that in case of a settlement of an action in which a warrant of attachment has been issued the sheriff’s poundage shall be computed on
If there were an adjudication either on a motion to vacate the attachment or by final judgment or otherwise that the plaintiff had no cause of action or was not entitled to the warrant of attachment then, of course, the sheriff would have no lien on the property attached for his fees and poundage (Lawlor v. Magnolia Metal Co., 2 App. Div. 552; appeal dismissed in 149 N. Y. 591); but without such an adjudication or competent proof — which the plaintiff’s stipulation that he has no cause of action is not — that the warrant of attachment was not authorized, the sheriff, I think, has a lien upon the property thus lawfully attached and may hold it until his fees and poundage are paid. (Laws of 1892, chap. 418, amdg. Laws of 1890, chap. 523, § 17; Treadwell & Co. v. Mead Mfg. Co., 75 App. Div. 478; Jones v. Gould, 114 id. 120.)
The statute cited authorizes the court, on vacating a warrant of attachment, to make an order requiring the party hable for the sheriff’s fees and poundage to pay the same. The parties having failed to make provision by their stipulation for the sheriff’s fees and poundage, doubtless the defendant might have had the court determine that the plaintiff, who obtained the writ, was liable for such fees and poundage. (Tribune Assn. v. Eisner & Mendelson Co., 49 App. Div. 141; Esselstyn v. Union Surety & Guaranty Co., 82 id. 474, distinguishing on this point Treadwell & Co. v. Mead Mfg. Co., supra; Plummer v. International Power Co., 88 App. Div. 452.) I think there can be no doubt but that the court has authority
The order, therefore, accords to the defendant all the relief to which it was entitled, namely, that the action be discontinued, and, in effect, that the attachment be vacated and the property surrendered to the defendant upon payment to the sheriff of his poundage computed on the value of the property; but that until such payment the sheriff still presumptively has a lien upon the property for his poundage.
I, therefore, vote for affirmance.
Order reversed, with ten dollars costs and disbursements.