Trenor v. Fachiu — 20 How. Pr. 405

Majority

p. 405

SUPREME COURT.

Frederico Trenor and others agt. Andrea Fachiu and others.

Headnote

A sheriff is entitled to his commissions where an attachment under the Code, has been issued and served, upon a settlement of the action, upon the amount or sum which the debtor pays to the creditor, although it does not come to his hands, as well as his necessary disbursements.

New York Special Term,

February, 1861.

An attachment was issued to the Sheriff of New York, under section 227 of the Code, for an amount exceeding

p. 406

$16,000. The sheriff served it by leaving a copy with sundry persons who are 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. The action has not been tried. The parties are proposing to make some settlement or compromise. The question as to what commissions the sheriff is entitled to, in case of a compromise, is submitted.

Brown, Hall and Vanberpoel, for the sheriff.

Jos. Larocque, for defendants.

Section 243 directs that the sheriff shall be entitled to the same fees, compensation and disbursements as are allowed for the like services and disbursements under chapter five, title one, part two, B. S. 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 section 31, article eight of the said chapter and title. (3 R. S., p. 119, § 31, 5th ed.) It is all necessary disbursements, and a commission of 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 been 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. R., 280). In the event of a compromise between the debtor

p. 407

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.