Majority
p. 478M. H. Treadwell & Co., Plaintiff, v. John A. Mead Manufacturing Co., Appellant. William J. O'Brien, as Sheriff of the County of New York, Respondents.
Headnote
Sheriff’s poundage under an attachment—payment thereof, how enforced,.Where á levy under an attachment has been discharged the court has power to tax the sheriff’s poundage, but has no power, either under section 709 of the Code of Civil Procedure or under subdivision 2 of section 17 of chapter 523 of the Laws of 1890, as amended by chapter 418 of the Laws of 1892, to order either party to the action to pay such poundage. The sheriff’s remedy in such a case is to hold the property until his poundage is paid or to sue the party liable for his poundage for the amount thereof as taxed.
Appeal by the defendant, the John A. Mead Manufacturing Co., from an order of the Supreme Court,, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of August, 1902, taxing the poundage of the sheriff of the county of New York at forty dollars, and directing the defendant to pay to said sheriff the said sum of forty dollars within ten days after service of a copy of the order.
Robert B. Knowles, for the appellant. ■
John J, Adams, for the respondent.
We know of no authority for the provision in the order requiring the defendant to pay the poundage as taxed by the court. ' Section 709 of the Code of Civil Procedure provides that “ where a
p. 479
warrant of attachment is vacated or annulled, or an attachment is discharged, upon the application of the defendant, the sheriff must, except in a case where it is otherwise specially prescribed by law, deliver over to the defendant, or to the person entitled thereto, upon reasonable demand, and upon payment of all costs, charges and expenses, legally chargeable by the sheriff, all the attached personal property remaining in his hands, or that portion thereof, as to which the attachment is discharged, or the proceeds thereof, if it has been sold by him.” This section confers no authority upon the court after a discharge of a levy under an attachment to order either party to the action to pay the sheriff’s poundage. Subdivision 2 of section 17 of chapter 523 of the Laws of 1890 as amended by chapter 418 of the Laws of 1892 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 amount at which the settlement is made and that the sheriff may retain the property levied upon until his fees and poundage are paid, but this act contains no authority for such a direction in an order. The. court has power to tax the sheriff’s fees, and the order, so far as it taxes his poundage at the sum of forty dollars, seems to be correct. If the sheriff wishes to collect his poundage his remedy is to hold his -levy until it is paid, or to sue the party to the action liable for his poundage for the amount taxed.
The order should be modified by striking out the last clause ordering the defendant to pay the poundage within ten days, and as modified affirmed, without costs.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, without costs.