p. 418Appeal by the applicants from an order vacating the attachment issued in the action, with the condition that the applicants pay the fees of 'the sheriff.
The appeal is from so much of the order, as required the payment of the fees of the sheriff.
Philip Carpenter, attorney and of counsel for appellants, argued:—
I. The court had no power to require the appellants to pay the sheriff’s fees, as a condition of vacating the attachment. The right to so order is claimed under section 709 of the Code, which provides that where a warrant is vacated “ upon the application of the defendant” the sheriff must deliver the property to the defendant, or person entitled to it, upon payment of his fees. This section does not attempt to cover the case at bar, where the warrant is vacated “ upon the application of” execution creditors and not of the defendant. If the court holds otherwise, however, the order is still unauthorized, because the law is unconstitutional. The case of Bowe v. U. S. Reflector Co., 36 Hun, 407 (First Department), is directly in point and decisive of this appeal. The court there very carefully considered the section of the Code referred to, and pronounced it repugnant to the constitution (art. 1, §§ 1, 6), which provides that—“ No member of this state shall be deprived of life, liberty or property, without due process of law.”The court cites cases where it has been held that the legislature can never take the property of one person without his consent and give it to another, and they add: “That is precisely, where an attachment has been set aside, vacated or annulled, either by the abandonment of the party in whose favor it is issued or by an order of the court, what this section of the Code has provided may be done with the property of a defendant when it has been seized under an attachment. This direction in its practical effect is to take the property of the defendant, after the lien of the attachment has in
p. 419this manner been removed, and apply it to the payment or the debt created by issuing and serving it, and after-wards detaining the defendant’s property under its authority, and no more flagrant violation of the rights of an owner of property can well be imagined.” In the case cited the attachment was originally lawfully granted, and afterwards vacated because the plaintiff did not give additional security as required. It is not, therefore, so strong a case as the one at bar, where the court had no jurisdiction in the first place to grant the warrant. An analogous authority is also found in Weston v. Watts, 45 Hun 219 , where an order appointing a receiver of a firm had been reversed; the court declined to direct payment of his fees out of the property, but directed that the plaintiffs should pay them. The court, Daniels, J., say: that the appointment of a receiver “was an invasion of the defendant’s rights for which there is no law requiring him or his property to pay the expense.....To take a person’s property from him by an unauthorized proceeding and place it in the hands of a receiver, and then subject him to the expenses of the proceeding, would be very transparently unjust, even if the courts had the power to do that.” “ The law cannot sanction the taking of one man’s property and subjecting it to the expenses or obligations of another. Due process of law requires something more than an unauthorized legal proceeding, set aside by the final action of the courts.” Bartlett, J.: “ It would be a pretty severe rule, even if constitutional, which should compel a litigant to pay the expenses of having his own property illegally taken out of his custody for a while.” It does not seem necessary to cite more of the many cases where the courts have held that one man’s property cannot be legally taken to pay another’s debt.In this case the plaintiff employed the sheriff to seize and hold the defendant’s property, upon a warrant which it (the plaintiff) knew was illegally granted. That warrant has been set aside upon the ground that the court
p. 420had no jurisdiction to grant it. With the fall of the warrant everything done under it also falls, and the property illegally taken must be restored to the defendant, subject only to. legally acquired liens! By the levy of their execution, the appellants acquired such a lien, and they had every right, upon the motion to vacate, that the defendant would have had (Code, § 682). The court could not impose terms as a condition of making an order that it was obliged to make anyway. The affidavit on which the warrant was granted either was or was not sufficient. If it was sufficient the court had no right to vacate the attachment on this motion, with or without terms. If it was not sufficient, as it was not ( 44 N. Y. 270 ; 78 lb. 258), the court was bound to vacate it, and could not impose terms. It had no discretion. The appellants were entitled absolutely, as a matter of right, to have the warrant vacated. Moreover, the appellants by their levy acquired a lien upon the defendant’s entire interest in the property attached. His interest included the right to have the attachment vacated without paying the sheriff’s fees. The appellants took no less a right, as they took all the rights the defendant had. !■ II. The sheriff’s rights are amply protected without the order. (1) He either has or has not, at law, a lien upon the property for his fees. If he has not a lien the court cannot give him one by an order. If he has a lien anyway the order adds nothing to it. His possession protects him. (2) The plaintiff who employed him to render the services and is liable for them is responsible, and so far as appears is entirely willing to pay the bill. The sheriff always has the right, too, to demand his fees or security for them in advance. Bowell & Co. (the appellants) did not employ the sheriff to do anything, they incurred no liability to him. But under the order of the court they are required to pay the plaintiff’s debt to him, while the plaintiff itself, who obtained an unfounded attachment, is relieved from all responsibility therefor. The sheriff’s fees might be very large—sev
p. 421eral thousand dollars—more perhaps than the value of the property; we might then have the absurd case that the execution lienor could better afford to let the property go than pay the fees, while the defendant himself could get the attachment vacated, and, with no fees to pay, walk off with the property unmolested. It is to. be observed, too, that if Eowell & Co. pay the fees they cannot recover them of the plaintiff or defendant or the property. They can tax them against no one.After the attachment had been levied upon property of the defendant, the applicants obtained judgment against the defendant. Execution was issued and the sheriff levied it upon the property in his hands, subject to the levy of the attachment. The applicants thereupon moved (§ 682,-Code Civil Procedure) as persons having a lien on the property to vacate the attachment. It was vacated by an order that ordered, that the order of attachment “ be and the same hereby is vacated and set aside upon payment of the fees of the sheriff.” The appellants take the position that they were entitled to an unconditional vacation of the attachment, the court having, no power to impose the performance of the condition.
It appears from general reasoning, that the applicants-were entitled to have their lien, free from the order of, attachment, as of the time it was first issued and before the sheriff had leviéd it and his fees had accrued. It was vacated because of the insufficiency of the affidavits on which it had been granted.
The counsel for appellants supposes that no provision' of the Code gives the right of the sheriff to hold the property for his fees when the attachment is vacated on the application of a person, other than the defendant,, and who has acquired a lien upon the property, urging that section 709 is confined to an application by the de-, fendant. I am inclined to think that this is not correct, because in that section it is made the duty of the sher
p. 422iff “to deliver over to the defendant or to the person entitled thereto ” upon demand and upon payment of his fees, all attached property. This implies that the case of an application of such person, is considered by the section. If this be so, then the first part of the section is to be read “ where a warrant of attachment is vacated or anulled upon the application of the defendant, or any person, etc., or an attachment is discharged upon the application of the defendant,” etc.
But as the counsel shows, the exaction of the section, that a person’s property shall not be delivered to him until he pays fees for which he has no personal liability, is unconstitutional and therefore inoperative. Bowe v. U. S. Reflector Co., 36 Hun, 407 ; Weston v. Watts, 45 Ib. 219. For like reasons, an order could not competently provide for such an exaction.
I apprehend the true course of practice is, that under section 682 a person making a sufficient application, is entitled to an order vacating the attachment. This order does not directly operate as a mandate to the sheriff that he shall deliver the goods. If there were nothing more, the sheriff would be bound to deliver the goods, because the defendant as the third person would have a right to them, as soon as the attachment was vacated, upon reasonable demand. Such a demand would be necessary if section 709 did not provide for it. Section 709 is not unconstitutional in this respect, or in respect of it making it the duty of the sheriff to deliver the goods or the proceeds. And under that section the performance of the duty may be compelled by order, if before that section there were no such remedy, or if there were.
Upon demand of the property the sheriff may claim fees, and then his right is, for the first, to be determined.
The relevancy of these remarks is perceived, when the fact is noticed that in this case the applicants had no right to a. delivery by the sheriff of the property to them. Their interest was that of a lien by execution.
p. 423The attachment being out of the way, the sheriff was to keep the property in his hands, until he should sell it, in obedience to the execution. This would follow from the attachment being vacated. What he shall do with the proceeds of the sale is a question for the future. The appellants were entitled to a simple vacating of the attachment and to the benefit of the legal consequences.
I understand the sheriff has not been notified of the motion to vacate the attachment. No decision can be made as to his rights.
The plaintiffs, who are respondents, did not oppose the motion to vacate, nor the reversal of the order. Still, they should pay the costs of the motion to vacate, which was made necessary by their procuring the attachment. On the appeal owing to peculiar circumstances, the costs should not be against them.
The order appealed from is reversed, and the motion to vacate granted, with $10, costs of motion and the disbursements of the appeal, which are to be taxed.
Truax, J., concurred.