286 A.D. 143 | N.Y. App. Div. | 1955
Defendant, an attorney, appeals from a summary judgment in favor of plaintiff Sheriff for poundage fees arising from a levy on a warrant of attachment which was subsequently vacated.
Defendant attorney, in behalf of his client, one Bril, had filed with plaintiff Sheriff a warrant of attachment issued by the Supreme Court, Brie County, in an action instituted by Bril against a foreign bank. The Sheriff levied on the bank’s funds located in New York. Subsequently, the bank, in that action, obtained summary judgment against Bril and the warrant of attachment was vacated. The attached funds were released to the bank. The Sheriff then sought to obtain from Bril the poundage fees to which he became entitled. (Civ. Prac. Act, § 1558.) Failing in this, because neither Bril nor any of his assets could be found in the State, he thereupon instituted this action for his fees against defendant, Bril’s attorney, and obtained summary judgment.
It has long been the law of this State that an attorney is liable in a plenary action to the Sheriff for fees incident to the execution of a process delivered by the attorney to the1 Sheriff. (Adams v. Hopkins, 5 Johns. 252; Campbell v. Cothran, 56 N. Y. 279; see Myers v. Grove, 242 App. Div. 637.) Section 1558 of the Civil Practice Act, contrary to the attorney’s contention, does not relieve him of this liability. It is his view that the Sheriff should have collected his fees from the attached funds before he released them to the bank. But, subdivision 17 of section 1558, upon which he relies, distinguishes between vaca
Moreover, although Bril was required to obtain an undertaking in order to procure the warrant (Civ. Prac. Act, § 907), the bond, apparently, protects the attachment defendant only, and is not broad enough to imhurse the Sheriff for his fees. It is only fair that, as between Bril and his attorney, the former should bear the burden of the Sheriff’s fees. Ordinarily, the attorney may he able to protect himself by obtaining an amount equal to the fees from his client in advance of execution of the warrant. At times, however, this may not be possible. It would seem, therefore, that, if an attorney in a situation such as this is to be protected, legislative action would be required. Perhaps the undertaking of the attachment plaintiff may, by statute, be extended to assure payment to the Sheriff of any fees or charges to which he may become entitled, as well as to indemnify the attachment defendant.
The judgment and order should be affirmed.
Peck, P. J., Cohn, Callahan, Beeitel and Botein, JJ., concur.
Judgment and order unanimously affirmed, with costs. [See post, p. 963.]