Hyperlawhypertext legal database Haase v. Levering 38 N.Y.S. 432

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Haase v. Levering

38 N.Y.S. 432 Court N.Y.C.P. English

Delivered by PRYOR, J.

Contents

Majority

p. 432
(1 N. Y. Ann. Cas. 404.)
HAASE v. LEVERING.
(Common Pleas of New York City and County, Special Term.
March, 1895.)

Headnote

1. Discharge of Attachment—Sheriff’s Claim for Poundage.
Code, § 709, providing that, on the discharge of an attachment, the sheriff must deliver the property to plaintiff, on payment of ail costs, charges, and expenses legally chargeable by the sheriff, does not entitle the sheriff to poundage, on discharge by filing an undertaking by defendant; it being uncertain what amount, if any, plaintiff will eventually recover, and, under section 3307, subd. 2, poundage is computed on the amount at which settlement is made.
2. Same.
The risk incurred by the sheriff from the possession of the property attached is no ground for a claim of poundage.
Action by Henrich Haase against William T. Levering. An attachment issued, under which the sheriff levied on certain goods of defendant. .The attachment was thereafter discharged by undertaking. Defendant moved to release the sheriff’s lien for poundage.
Motion to discharge granted.
Hirsch & Rasquin, for plaintiff.
Davison & Chapman, for defendant.

The sheriff demands poundage on goods attached. The attachment has been discharged by an undertaking. By section 709 of the Code, on- the discharge of an attachment, the sheriff must deliver the property to the plaintiff on payment of all costs, charges, and expenses legally chargeable by the sheriff; that is, at the time of the discharge. The action not being settled' or determined, it is uncertain what amount, if any, the plaintiff will eventually recover; and no sum exists, therefore, on which to compute poundage. By section 3307, subd. 2, of the Code, if the action be settled, the sheriff may have poundage “upon the value of the property attached not exceeding the sum at which the settlement is made.” But the action is not settled, and is proceeding to a result which cannot be anticipated. In the absence of proof, compensation is not allowable to the sheriff for trouble and expense in taking and preserving the property. Nestor v. Bischoff, 123 N. Y. 517 , 25 N. E. 1046 . The risk incurred by the sheriff from the possession of the property is no ground for a claim of poundage. Flack v. State, 95 N. Y. 461 , 469-471.

The conclusion is that the claim for poundage be disallowed.

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