Trenor v. Fachin — 12 Abb. Pr. 136

Majority

p. 136

TRENOR a. FACHIN.

Supreme Court, First District;

Special Term, February, 1861.

Headnote

Attachment.—Commissions of Sheriff.

On an attachment under section 227 of the Code, which is served by notifying the debtors of the defendant,—if the proceeding is compromised between the defendant and his creditor, the sheriff is entitled to his commissions on such sum as the defendant pays although it does not come to the hands of the sheriff.

Question of costs.

In this action an attachment was issued to the sheriff of New York, under section 227 of the Code, for an amount exceeding $16,000. The sheriff served it by leaving a copy with sundry persons who were supposed to be indebted to the defendants, or to have money in hand belonging to them to an amount probably sufficient to pay the demand.

Before the action came to trial, the parties, in contemplation of a settlement, or compromise, submitted to the court the question as to what commissions the sheriff would be entitled to.

Brown, Hall & Vanderpoel, for the sheriff.

J. Larocque, for the defendants.

—Section 243 directs that the sheriff shall be entitled to the same fees, compensation, and disbursements as are allowed for like services and disbursements under 2 Rev. Stat., ch. 5, title 1. The services in this case are the same that are to be rendered by trustees under the chapter of the Revised Statutes referred to. No goods have been seized; credits only are attached. The compensation to trustees is provided in sec: 31, art. 8 of the said chapter and title. (3 Rev. Stat., 119, § 31, 5 ed.) It is all necessary disbursements, and a commission of

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five per cent, on the whole sum which shall have come into their hands.

In the case of a composition or settlement, there is no sum of money that comes to the hands of trustees in the case of an attachment under the Revised Statutes, or-to the sheriff on attachments under the Code, where the service has be,en made by notifying the debtors of the defendant.

The late Supreme Court gave-a construction to the provision of the Revised Statutes, relating to the commissions of trustees, in a case where a compromise had been made and no money came to their hands.

The true construction was given, without doubt, in the Matter of Robert Bunch, a non-resident debtor ( 12 Wend., 280 ). In the event of a compromise between the debtor and creditor, the rule is an equitable one. That rule, in case of a voluntary settlement between the parties, will give to the sheriff his commissions upon such sum as the debtor pays to the creditor, although it does not come to the hands of the sheriff, as well as his necessary disbursements.