95 N.Y.S. 763 | N.Y. App. Div. | 1905
Lead Opinion
This action was brought to recover $206,000 for. an alleged conversion of the plaintiff’s property. At the commencement thereof the plaintiff procured an attachment which was perfected by the sheriff levying upon property of the value of $300,000. Shortly after the levy had been made under the attachment, by consent of the parties and without notice to the sheriff, the action was discontinued, the attachment vacated and the bond canceled. The sheriff,
- The fees claimed are for poundage, and the right to- them is governed by a special statute relating only to the- county of ¡New York. (Laws of 1890, chap. 523, § 17, subd. 2, as amd. by Laws of 1892, chap. 418.) This statute, among other things, provides that “ where the warrant of attachment-is vacated, set aside or discharged by order of the court, poundage upon the value of the property attached not exceeding the amount specified in the warrant, and such additional compensation for his, trouble and expenses in taking possession and preserving the property as the judge issuing the warrant allows, * * * and the, judge or court may make an order requiring the party liable therefor to pay the same to the sheriff.” It also .provides-that “if an action is settled, either before or after judgment, the sheriff is entitled to poundage upon the value of the property attached not exceeding the sum at which the settlement is máde;; the sheriff may retain the property levied upon until his fees and poundage are paid.” -
The attachment was not vacated, set aside or discharged by an order of the court, and the record shows that tife action was settled without consideration. The sheriff, therefore, was not entitled to ■poundage upon the value of the property attached in excess of the amount specified in the warrant. The action was. settled without consideration and he, therefore, was not entitled to poundage upon the value of the property attached in excess of the sum at which the settlement was made. But, notwithstanding' these facts, the sheriff was entitled to his fees/ Otherwise there is no meaning to the words used in the statute that “.the sheriff may retain the property levied upon until his fees and poundage are paid.” He had done all the law required him to do to be entitled to poundage. He had perfected the-attachment by taking the property into his possession and thereafter caring for it until the parties to the litiga- . tion had adjusted their differences, and requested a return to the
This decision was cited with approval and followed in Esselstyn v. Union Surety & Guaranty Co. (82 App. Div. 474) where Hirschberg, J., after pointing out the distinction between the two provisions of the statute, viz., that which permits an order requiring the payment of the sheriff’s fees and that which coniines the sheriff’s remedy to his lien upon the property attached, said: “ In the one case the lien is destroyed by the act of the parties and the sheriff may retain the property to secure his fees; in the other case the lien is destroyed by the action of the court, and the court is per
The statute clearly contemplates that after an attachment has been issued and a levy made thereunder the sheriff is entitled to poundage. If the warrant is vacated by an. order ,of the court then the poundage is to be'determined by the value of the property attached, not exceeding the amount specified in the warrant, and such additional compensation for taking 'possession of and caring for the property and expenses as the judge issuing the warrant may allow.- . ' -
. I'can see no good reason why the same rule should not be applied where the, warrant is vacated without consideration at the request or with the consent of the party who procured it. • In each case thé result is precisely the same to the sheriff, and if lie is entitled to poundage, in the one case it would.seem that a fair and reasonable construction of the statute entitles him to it in the other. The result being the same to himj his poundage should be- determined in the same way. ’ .
As already suggested; the judge issuing the wurrant did not have the power to -direct the payment, but he did have the power to determine the amount (Treadwell & Co. v. Mead Mfg. Co., supra), and this he. should have done,
The order áppealed from, therefore, should be reversed in so far - ■ as the: motion was made to tax- the sheriff’s fees, -and the matter remitted to the Special Term for that purpose and in. all other respects affirmed,'without costs to either party.
Ingraham, J., concurred; Lau&hlin, J., concurred in result.; O’Brien, P. J., and Patterson, J., dissented in part.
Dissenting Opinion
I am of the opinion that the sheriff is- entitled to poundage. That right, of course, depends entirely.upon statute, Campbell v. Cothran, 56 N. Y. 281.) The special statute relating to that subject applying only to the county of New York is subdivision 2 of . section 17 of chapter 523- of the Laws of 1890, as amended by chapter 418 of the Laws of 1892.
."Wo had occasion ’to consider and construe that statute in the case of Plummer v. International Power Co. (88 App. Div. 452); It
In.the record in this case it appears that the attachment was vacated by order of 'the court .made on the 20th day of February, 1905. That order provides as follows: “ Ordered that the above-entitled action be and the same is hereby discontinued, without costs to either party, as against the other, and that the attachment granted therein on January 5th, 1905, be vacated and that the bond upon the obtaining of such attachment be cancelled.” Here is a specific order vacating the attachment, and the sheriff is entitled to poundage ; and, as was said in the case last cited, where the attachment is absolutely discharged or vacated by order of the court, and the ■ sheriff’s relation to the subject ends, he is permitted to receive his compensation at once, and the value of the property attached is made the basis of his right, for there is apparently none other upon which poundage could be computed.
I think the order appealed from should be reversed and that the sheriff should have his poundage allowed, computed upon the value of the property attached.
O’Brien, P. J., concurred.
Order reversed as to sheriff’s fees, and matter remitted to Special Term, and in all other respects affirmed, without costs.