104 N.Y.S. 935 | N.Y. App. Div. | 1907
An attachment had been issued in this case which had been executed by the sheriff by levying upon $500,000, the property of the defendant Gould, on deposit in the Mercantile Trust Company. Gould then gave an undertaking in the sum of $500,000 under sec
The sheriff appealed from that order and this court modified the . order so as to provide that the motion to discharge the attachment be granted upon the payment of the fees of the sheriff. ' (114 App. Div. 120.) This reversed the order of the Special Term discharging the attachment, but directed that the attachment should.be discharged upon paying the sheriff’s fees, the said- fees to be taxed upon notice. The situation then was -that the attachment was to be discharged when' the sheriff’s fees which were to be taxed were paid. Subsequently,' oh -the application of the sheriff, his fees were taxed, but until such fees' were paid the original levy upon the money of the defendant Gould with the trust company remained in full force, and that is the situation as it now exists.- The sheriff was entitled to hold the $500,000 which he liad attached in the trust company . belonging to Gould until those fees were paid, and the sheriff still possesses that right. This motion was made to require Gould to pay the sheriff’s fees as taxed to the sheriff. I do not see that there is any- authority for such an order. • .
Subdivision 2 of section-17 of chapter 523 of the Laws of 1890 (as amd. by Laws of 1892, chap. 418) provides that where a warrant of attachment is discharged poundage upon the value of the property attached not exceeding the amount specified in the warrant, and
It seems to. me, therefore, that the sheriff has one of several courses which he can adopt. He can retain possession of the property levied upon until his fees are paid or he can release the property levied upon, and when it is finally determined in the action who are liable for his fees lie can then apply to the court under the special statute for an order' directing that party to pay his fees, or he can sue to recover liis- fees from the party who was liable. The court below, therefore, was justified in refusing to make a summary order requiring Gould to pay the sheriff’s. fees., The order that was actually entered discharged the attachment upon payment. of the sheriff’s fees which had been taxed, with ten dollars costs of the motion. This order simply enforces the order of the court upon the appeal heretofore heard, and no harm can result inasmuch as the lien of the attachment upon the money on deposit with the trust company attached by the sheriff still exists and lie can hold that money until his fees are paid. When the action is finally determined he can either by an action or by an- application under this
■ The order appealed from should, therefore; be affirmed, with ten dollars costs and disbursements.
McLaughlin, Clarke and Lambert, JJ., concurred; Patterson, P. J., concurred in result.
Order affirmed, with ten dollars costs and disbursements.