Duffy v. Burton

The material facts of this case are without dispute. The defendant was an attaching creditor of the D. G. Burton Com-. pany. At about the same time some 21 other attachments by different parties were issued, and levies made by the sheriff thereunder. After the levy of all the attachments, the defendant, by arrangement with the attaching creditors, became substituted to all their interest therein; and her attorney became the attorney of record therein, and represented the defendant in connection therewith. Subsequently, by negotiation, the attachments were settled, and the attorney for the defendant directed the sheriff to release the levies thereunder, and discontinued the actions. The effect of this arrangement was to render the party or her attorney liable to the sheriff for Ms fees in connection with the actions, and they could not thereafter be continued by the sheriff for the enforcement of his fees, in the absence of collusion between the parties, and the irresponsibility of plaintiff or her attorney. Jackson v. Anderson, 4 Wend. 474 ; Crock. Sher. § 1162. It is without dispute that the defendant was the party in interest in connection with all the actions in wMch the fees arise for wMch the sheriff seeks to recover in this action, and consequently upon their discontinuance by her direction her liability to pay the fees became fixed. Such liability does not rest upon an agreement to pay. It is created by operation of law. The amount of the fees having been settled by a formal order, upon an appeal to the appellate division, taken for that purpose, such sum is conclusive upon the defendant. The testimony of McC. Robinson was improperly received, as it did not appear that he possessed any authority to bind the defendant, and was not authorized to speak for her. But this error was harmless, for upon the undisputed facts the plaintiff was entitled to recover.

The judgment should be affirmed, with costs. All concur.