89 N.Y.S. 1019 | N.Y. Sup. Ct. | 1904
This motion is made on the following state of facts: On March 4, 1904, the sheriff received a warrant of attachment directing him to attach so much of the property of the plaintiff within this county as would satisfy the defendant’s counterclaim of $2,650. .On the same day the attachment was levied upon a debt or demand of $3,500 then due to the plaintiff from Schultz & Ruckgaber, of this city, and the sheriff, on the 9th of March, 1904, received from that firm a certificate showing an indebtedness to the plaintiff by the firm of $3,500. Thereafter the plaintiff moved to vacate the attachment upon the ground that the papers upon which it was granted were insufficient in law, and such proceedings were had thereon that on the 25th of April, 1904, an order was made and entered vacating said attachment upon that ground and the same was served on the sheriff on the 1st day of June, and the property attached was released pursuant to its requirements. Thereupon the sheriff presented his bill for his fees and charges, amounting to ninety-one dollars and twenty-five cents, to the defendant’s attorney, who obtained the "warrant, but he has refused to pay the same and still refuses to do so, maintaining that he is not liable for the same and that there is no proof that any property was actually levied upon under the attachment. He does not, however, deny that the firm on whom the attachment was served gave, the certificate required by section 650 of the Code of Civil Procedure, and thereafter they would have been estopped
The only question remaining is whether the attorney issuing the process is liable for these fees. This was decided in the affirmative as early as Adams v. Hopkins, 5 Johns. 252, 254, where the court said: “ I think also, that the sheriff has a 'right to look to the attorney for this poundage. He is his immediate employer. The attorney cannot be considered as acting in the character of a known agent, so as to charge the sheriff with giving credit to the principal. The sheriff has no discretionary power left him, whether to perform the service or not. He is bound to execute every legal process delivered to him, before he can demand his fees. All reasonable security ought therefore to be extended to him, to insure a compensation for his services. He cannot be presumed to be acquainted with the residence or responsibility of parties. Very different is the situation of the attorney. He is not bound to undertake any suit, nor incur any responsibility, without a reasonable indemnity, if suspicious of his employer.” This case has been frequently followed, and in Campbell v. Cothran, 56 N. Y. 279, was established as the law of this State on this question, where the court said (p. 280): “ This question (whether the sheriff could collect from the attorney) was decided by the Supreme Court in 1810, in the case of Adams v. Hopkins, 5 Johns. 252.
Ordered accordingly.