Demorest v. Torry — 9 Abb. Pr. 95

Majority

p. 95

DEMOREST against TORRY.

Supreme Court, First District; Special Term,

Octo ber, 1870.

Headnote

Attachment.—Sheriff’s Fees.

Where it appears that the-defendants whose stock in trade was levied upon,- carried on their business as usual after the levy, the sheriff is not entitled to night charges for a watchman, without definite proof that the watchman was there day and night, in actual and continued charge of the goods seized.

Where the attachment is discharged after levy, by the defendants giving the usual undertaking, the sheriff is not entitled to poundage.^[1]

Motion as to costs.

This action was brought by Abraham Demorest against E. S. Torry and others, to recover the sum of six hundred and twenty-five dollars. The defendants were non-residents, but had a place of business here ; and an attachment was issued against them, and levied on their stock.

The cause having been tried, the defendants recovered judgment. About three months after the attachment was issued, the defendants had procured it to be discharged, by an undertaking given under the Code, and the justification of the. sureties thereof. Meanwhile, the sheriff had put the property in the charge of a keeper. The sheriff’s bill included the following items:

p. 96

Poundage,.......$14.40

Attachment and return, . . . 5.69

Service of summons, . . . .6.00

Watchman 115 days and 114 nights, 687.00

Deputy’s compensation, . . . 35.00

The allegation that the defendants carried on their business as usual after the attachment and levy is not denied, and the affidavits in reference to the attendance of the watchman are not sufficiently definite to warrant the conclusion that he was there day and night for the period named in actual and continued charge of the goods seized. Under such cir-' cumstances, the item of six dollars a day-and night cannot be allowed, and must be reduced to two dollars and a half per day for one hundred and fifteen days. The sheriff is not entitled to poundage, the property not having been sold. To such effect are the decisions of this court. The deputy’s compensation is an item which depends upon the allowance made to him. I see nothing to justify me in saying that it is an unreasonable amount. The bill must be reduced, therefore, in the respects named,—to wit: the item of poundage excluded, and the charge for watchman reduced as suggested. .