85 N.Y.S. 107 | N.Y. App. Div. | 1903
This is an appeal by the plaintiff from an order allowing the sheriff of the county of New York poundage upon property released from an attachment (the property so released being only a part of that upon which the attachment was levied), and also requiring the plaintiff to pay to the sheriff the amount so allowed. The action is still pending, and the attachment is still in force, and the levy subsists upon a very large amount of personal property. The order was made upon the sheriff’s application and under the following
The right of the sheriff of the county of New York to poundage is governed by a special statute relating only to that county. It was passed in 1890 (Laws of 1890, chap. 523). It was amendéd by the Laws of 1892 (Chap. 418); The act of 1892,
The right of the sheriff to poundage depends entirely upon . .statute. (Campbell v. Cothran, 56 N. Y. 281,) The real question requiring determination here relates to the right of the sheriff to have poundage paid to him upon a release of an attachment from a part of the property levied upon, while there remains, subject to the lien of the attachment, ample property to pay any fees to which he may be entitled. The action is still pending; it is subject to setlement by the parties, the sheriff being entitled, if it is settled, only ■to poundage upon the value of the property attached, not exceeding the sum at which the settlement is made. The case of an absolute discharge of the attachment, which would entitle the sheriff to poundage, is not presented. As we construe this statute, we find in it nothing which justifies the allowance of poundage piecemeal. Poundage is a percentage for services. When the attachment is vacated or discharged by order of the court, and the service of the ■sheriff has been fully performed and ended and the whole process has performed its office, the statute gives the right to poundage, irrespective of other conditions, and then the jurisdiction of the court attaches to require the party liable for the poundage to pay the same to the sheriff. In Esselstyn v. Union Surety & Guaranty Co. (82 App. Div. 476) it is said that the provision of the act authorizing the court to make an order requiring the party liable therefor to pay the sheriff’s poundage, “ where the warrant of attachment is either vacated, set aside or discharged by order of the court, is
If we are right in holding that the sheriff is entitled to poundage as one entire charge which cannot be fixed until the attachment is finally disposed of, then that to which he will be entitled necessarily depends upon the amount of the settlement or judgment. If the ' plaintiff collects the full amount of his demand, the sheriff is entitled to full poundage, irrespective of the release of a portion of the attached property. If the parties choose to settle the action at a sum less than that demanded by the plaintiff, the sheriff’s right to poundage is controlled by that part of the 2d subdivision of section 17, as amended, which allows the poundage upon the value of the property attached not exceeding the sum at which the settlement was made. All parts of this statute must be construed together, and in view of the ultimate right of the sheriff to poundage, 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; but where the action is continued, and the attachment remains and the sheriff’s lien still exists, payment of poundage is deferred.
We think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to have poundage fixed denied, with ten dollars costs.
Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ.,. concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Amending § 17, subd. 2.— [Rep.