Campbell v. Cothran — 65 Barb. 534

Majority

p. 534

Campbell vs. Cothran.

Headnote

An attorney issuing an execution is liable to the sheriff, for' his poundage thereon.

But when a judgment has been reduced in amount, by the court, on appeal, even after levy made upon an execution issued on it, the sheriff is entitled to his fees, or poundage, only on the amount to which the judgment has been reduced; where he has been notified of such reduction, and has collected only the reduced amount.

THE plaintiff is sheriff of the county of Monroe, and the defendant an attorney-at-law. As attorney for one Walter Try on he brought an action in the Superior Court of Buffalo against the New York Central Bailroad Company, to recover divers penalties alleged to have

p. 535

been incurred by said company by reason of its demanding and receiving from said Tryon a greater amount of fare, for travelling on its road, than by law it was entitled to demand and receive. Tryon recovered judgment in that action, for penalties, illegal fare and costs, $4,338.48. This judgment was duly docketed and a transcript filed in the clerk’s office of Monroe county, April 13, 1871. This judgment was affirmed by the General Term of the Superior' Court, with costs, which were adjusted at $74.41. On appeal to the Court of Appeals the judgment of the Superior Court was reversed as to all the penalties included in the judgment but one, which the plaintiff recovered, together' with the costs of the action in the Superior Court. The defendant issued execution to the plaintiff on said- judgment in the Superior Court, and directed him to collect thereon the sum of $4,338.58, and the sum of $73.09, being costs in the General Term, besides interest and his fees. The sheriff received the execution, and by virtue thereof seized and advertised for sale property of the railroad company sufficient in amount to satisfy the execution and Iris'fees.

Before a sale of the property so levied on, and after a reversal, in part, of the judgment by the Court of Appeals, the defendant notified the sheriff of the reversal, and directed him to collect on the execution the amount to which the judgment was reduced by the Court of Appeals, together with interest and his fees. The defendant made a motion in the Superior Court that the sheriff be required to return the execution satisfied on being paid the amount to which the judgment was reduced by the Court of Appeals, with interest and poundage on said sum. The court so ordered, and the sheriff having received the amount specified in the order returned the execution satisfied.

The plaintiff, as sheriff, brought this action to recover of the defendant as attorney in the suit of Tryon v.

p. 536

The New York Central Railroad Company, poundage-on the whole amount directed to be collected on the execution issued by the defendant to him, less the amount actually received from the defendant in the execution. The foregoing facts were either admitted or proved on the trial. The court was asked to order a verdict for the defendant; which request was refused, and the defendant’s counsel excepted. The court then directed a verdict in favor of the plaintiff, and against the defendant, for the sum of $1,030.99; to which direction the defendant’s counsel excepted.

The exceptions were directed to be heard in the first instance at the General Term, and judgment in the meantime suspended. 8

It was decided in Adams v. Hopkins, ( 5 John. 252 ,) that an attorney is liable to a sheriff for his poundage on an execution. The same principle was again held in Osterhout v. Day, ( 9 John. 114 ;) Trustees of Watertown v. Cowen, (5 Paige, 510;) Judson v. Gray, (1 Kern. 408.) Asno case holding a different rule is referred to, we must follow these cases and hold the defendant liable to the sheriff for his poundage.

By 2 Revised Statutes, 19, compensation was allowed a sheriff for serving an execution; and it was provided that on writs of fi. fa. and all other writs for levying money, poundage should be taken only “for the sum levied.” The Revised Statutes, (2 R. S. 536, 2d ed.,) authorized the sheriff to receive, for serving an execution for the ■ collection of money, for collecting $250 or less, two and a half cents per dollar, and for every dollar collected more than $250, one and a quarter cents per dollar. The amount of poundage to which a sheriff is entitled is the same under both statutes, and is measured by the amount collected on the execution.

If an execution is delivered to a sheriff requiring' him

p. 537

to collect $10,000, and he actually collects only $1,000, is he to receive poundage on the whole sum named in the process ?

He may have levied on property sufficient to satisfy the whole sum, yet for want of bidders or other cause no more than $1,000 could be realized from the sale, yet his poundage must be limited to the amount collected.

In the case supposed, the sheriff, by Ms levy, became liable for the whole amount of property levied on, and if that is the controlling consideration, he would be as much entitled to poundage on the $10,000 as would the plaintiff in this sMt.

The property levied on may be destroyed by fire, or flood, without the fault of any person, and if it should be, would the sheriff be entitled to poundage on the whole amount of the execution by virtue of which the levy was made ?

Section 943 of the Code gives, I apprehend, the correct construction of the provision of the Revised Statutes in relation to the poundage to which sheriffs are entitled. It declares that the sheriff shall be entitled to the same fees and compensation and disbursements under tMs title (the title relating to attachments) as are allowed by law for like services by the Revised Statutes. Provided, however, that no poundage or other compensation shall be allowed to the sheriff, (except, &c.,) unless a settlement shall be had or a judgment shaH be recovered and collected, in whole or in part, in the action in which the attachment issues. And when a judgment shall have been recovered and- collected in part only, the amount of Ms poundage shall not be estimated on any sum greater than the sum collected on such judgment. And when a settlement shall be had, the amount of his poundage shall not be estimated on any sum greater than the amount at which said settlement is made. It is not to be supposed that the legislature intended to lay down one measure of - compensation for executions on judgments

p. 538

in attachment cases, and another for executions in other cases. The provisions of section 243 are so just, and are so fully in accordance with the language of the provisions of the Revised Statutes, and the decisions under them, that they should be received as a legislative interpretation of those statutes relating to the fees and poundage. of sheriffs.

[Fourth Department, General Term, at Buffalo,

June 3, 1873.

Mullin, Talcott and M. D. Smith, Justices.]

The courts had held that the sheriff was entitled to his poundage on the amount of an execution after levy, although it be compromised or released, or set aside for irregularity. Such a construction was a liberal one, and was necessary to enable the officer to get compensation for his services ; and as there was no other standard by which to regulate his compensation, the amount of the execution was necessarily adopted.

These cases do not affect the construction to be given to the provisions of the Revised Statutes as to the measure of compensation where the sheriff has actually collected money on an execution.

For these reasons, I am of the opinion the verdict is wrong and should be set aside, and a new trial ordered, costs to abide the event.

¡New trial granted.