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Colberg v. Emerson

61 N.Y. St. Rep. 833 Court N.Y. Sup. Ct. Decision date 1894-03-05 English

Delivered by Andrews, J.

Contents

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p. 833
Colberg, Pl’ff, v. Emerson, Def’t.
(Supreme Court, New York Special Term,
Filed March 5, 1894.)

Headnote

Sheriffs—Poundage.
Where a copy of a writ of attachment and a notice of a levy are served upon the keeper of animals belonging to defendant and then in the hands of the collector of customs, the sheriff is, on a discharge of the writ, entitled to poundage on the value of the property, though he has never had actual possession.
Application by sheriff for taxation of poundage and keeper’s Í66S.
p. 834
Burritt S. Stone and W. E. Stilling, for motion; John A. Deady and Goodrich, Deady & Goodrich, opposed.

—The Code of Civil Procedure (§ 649) provides that an attachment shall be levied upon personal property, capable of manual delivery, by taking the same into the sheriff’s actual custody, and upon other personal property by leaving a certified copy of the warrant and a notice showing the property attached with the person holding the same. The former Code of Procedure contained similar provisions, and the expression “ property incapable of manual delivery ” has been the subject of judicial interpretation. In Clarke v. Goodridge, 41 N. Y. 214 , the judge delivering the opinion of the court said: “I agree with the superior court in holding that the expression, 1 property incapable of manual delivery to the sheriff,’ is applicable to property which not only in its nature is thus incapable of manual delivery, but also to that which has become so from its peculiar position, and where- it is under pledge or consignment, with advances made upon the property.”

In Warner v. Fourth Nat. Bank, 115 N. Y. 251 ; 26 St. Rep. 213 , the court held that an attachment would lie against securities in the hands of a party, where the party holding said securities had a lien upon the same, and the sheriff could not take it into actual custody. In Colman v. Orser, 5 Duer, 250 , an attachment had been issued against goods which were in the custom house. In that case it was said by the court that: “ The alleged service, which is relied on as to a valid levy, was made in August, 1853; and as the goods were then in the custom house, and the duties unpaid, the counsel for the defendant was right in saying that the sheriff could not require a manual delivery of the goods; but according to the decision of this court in Brownell v. Carnley, 3 Duer, 9 , could only execute the attachment under the mode prescribed by § 235 of the Code.”

In the case at bar an attachment was issued on January 31, 1894, by this court, and the affidavits submitted on the part of the sheriff state that he levied upon the animals therein referred to, on the steamer Tauric, lying at pier 38, North river. Such affidavits also state that after the goods had been removed to 600 Greenwich street, in this city, the deputy sheriff having the attachment served upon the person in whose care and custody the said property was placed for and on behalf of the United States government a certified copy of said warrant of attachment, and a notice showing the property attached. The notice in question is a general one, and does not specify any particular property, but it was held in O'Brien v. Merchants' & T. F. Ins. Co., 56 N. Y. 55 , that such a general notice is sufficient. In view of the interpretation which, as above stated, has been placed by the courts upon the expression, “ property incapable of manual delivery,” I think that in the case at bar a valid levy was made under the warrant of attachment. This view seems also to have been taken by the attorneys for the defendant, for on the 8th of February an order was obtained by them, discharging the at

p. 835
tachment. This order is as follows : “ A warrant of attachment having been duly granted herein, on the 31st day of January, 1894, and issued tto the sheriff of the county of Mew York, and the defendant having applied for a discharge of said attachment, and having given the undertaking required by § 688 of the Code, and the same having been duly approved and filed: Mow, on motion of Goodrich, Deady & Goodrich, attorneys for the defendant, it is ordered that the warrant of attachment granted herein, January 31, 1894, by Mr. Justice Lawrence, be, and the same is hereby, discharged.” This order does not recite that a levy had been made, but it is difficult to understand why the attorneys for the defendant thought it necessary to obtain an order discharging the attachment if no levy had been made. Under these circumstances, I think -that the sheriff is entitled to poundage. Section 2 of chapter 418 of the Laws of 1892 provides that where the warrant of attachment is vacated, set aside or discharged by order of the court, the sheriff shall receive poundage upon the value of the property attached, not exceeding the amount specified in the warrant. I understand that it is conceded that the value of the property attached largely exceeded the amount specified in the warrant, which was $10,000. The sheriff will therefore be allowed $275 for his poundage. In view of the fact that the property was not actually taken into the custody of the sheriff, the claim for keepers’ fees has, I understand, been withdrawn.

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