
    (89 Hun, 502.)
    UPTON v. ELECTRIC CONSTRUCTION & SUPPLY CO. O’LEARY v. SAME. GANTZ v. SAME. YOUMANS v. SAME. KLAUSE v. SAME. FT. WAYNE ELECTRIC CORP. v. SAME. WENDT v. SAME. HAMMER et al. v. SAME.
    (Supreme Court, General Term, First Department.
    October 18, 1895.)
    1. Sheriffs and Constables—Motion to Tax Fees in Attachment.
    Where receivers of an attachment debtor, appointed after attachments were levied, procured an order directing the sheriff to turn over to them the attached property, and requiring them to hold it subject to the liens of the attachment and of the sheriff, a motion by the sheriff, before trial of the actions in which the attachments were issued, to have his fees and disbursements adjusted and allowed, is premature.
    2. Same—Lien on Attached Goods.
    Laws 1892, c. 418, providing that where an attachment is vacated the sheriff is entitled to poundage on the value of the property attached, and such additional compensation for his trouble and expenses as the judge issuing the warrant allows, does not entitle the sheriff to a lien on the attached goods, unless the attachment is finally sustained.
    
      Appeal from, special term, New York county.
    Eight several actions by (1) Francis R. Upton, (2) Michael O’Leary, (3) William 0. Gantz, (4) Edgar W. Youmans, Jr., (5) Charles Klause, (6) the Ft. Wayne Electric Corporation, (7) Charles Wendt, and (8) William J. Hammer and another, as assignees for the benefit of creditors of Francis R. Upton, each against the Electric Construction & Supply Company. From an order adjusting sheriff’s fees in attachment proceedings against defendant, the receivers of defendant appeal. Reversed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
    Henry B. Gayley, for appellant.
    William F. G-oldbeck, for respondent Upton.
    Charles F. Wells, for respondent sheriff.
   O’BRIEN, J.

On February 14, 15, and 16, 1895, warrants of attachment were granted against the property of the defendant company, and issued to the sheriff, under which the latter claims to have levied upon its property. On February 15th receivers of the property of the company were appointed, both in the state of New Jersey and in this state, and on the 16th qualified by giving their bonds. In April, the receivers moved for an order directing the sheriff to turn over the attached property to them, which was granted; the order directing that the receivers should sell the property, providing, however, that the proceeds of such sale should be subject to the lien of the attachments and of the sheriff. Subsequently, two of these attachments were vacated, and thereafter, and on July 1st, the sheriff made a motion to have his fees and disbursements adjusted and allowed by the court. The receivers opposed the motion on the ground that, never having made a valid levy, and never having made a levy of any kind until after the appointment of the receivers, the sheriff was not entitled to any fees or disbursements, and on the further ground that, though levies were made, the amount claimed by the sheriff was excessive.

With respect to the plaintiff’s action in which the first attachment was issued, and under which the levy was claimed to have been made, no motion to vacate or set aside such attachment was made, although an answer was served, and the action is now pending. Just what was done by the sheriff, upon receiving the first attachments on the 14th of February, towards making a levy, is placed in doubt by the affidavits presented on the part of the receivers, tending to negative the claim advanced that the sheriff on that day took possession of or made any levy upon the property of the defendant. The questions now presented on conflicting affidavits, as to the validity of the attachments, and of the levies made thereunder, and as to the validity of the claims upon which the attachments were based, were raised upon the motion made by the receivers to compel the sheriff to turn over the property to them; and on the granting of such motion it was directed that the proceeds should be held until a determination of such questions. This being the disposition made by the court, on which an order was entered, and no appeal taken, we think that the present application made by the sheriff, to tax his fees and expenses upon the attachments in these various actions, was premature. The effect of now considering such questions would be to determine upon a collateral motion the validity of the attachments and the levies thereunder. This collateral attack is made upon a motion to which the attaching creditors were not originally parties, and was made by the sheriff alone, upon notice to the receivers, although, on knowledge being brought to such creditors that such motion was pending, they intervened, and have been heard upon the questions involved.

The only justification for the motion at this time is to be found in the position taken by the sheriff that, irrespective of the justice of the claims which are the basis of the attachments, or the validity of the attachments themselves, and irrespective of whether they are vacated or allowed to stand, the sheriff is entitled to his fees and disbursements. Part of this contention is based upon chapter 418 of the Laws of 1892, which, among other things, provides that, “where ■the warrant of attachment is vacated, set aside or discharged by order of the court, the sheriff is entitled to poundage upon the value of the property attached * * * and such additional compensation for his trouble and expenses in taking possession and in preserving the property as the judge issuing the warrant allows.” We do not think it was the intention of the legislature to compel a defendant who succeeds in vacating an attachment to pay poundage to the sheriff upon the amount specified in the attachment; but justice would seemingly require that, where so vacated, the plaintiff at whose instance the attachment was issued should be liable for the sheriff’s .fees. In other words, it was no doubt by this act intended to preserve the sheriff’s right to fees in cases where he had made a levy under an attachment, whether the same was subsequently vacated or not; but there is nothing in the express wording of the act, nor is it susceptible of an interpretation so unjust as, to compel one whose property has been illegally attached, and who has succeeded in having the same vacated, to pay the sheriff’s fees for wrongfully seizing upon his property.

Among the attachments issued, two have been already vacated, and the validity of the others, where, as here, they are brought in question, can only be determined when the same are confirmed by judgments. Having in mind the terms of the order under which the property was turned over to the receivers, subject to the liens of the various creditors, including the sheriff, it would hardly be claimed that any of the other creditors would have the right to move to compel the receivers to pay their respective claims until they had estab- • lished the same by judgments. And, as the right of the sheriff to his fees necessarily must depend upon the validity of the process under which he acted, we fail to see how he is in any better position, or entitled to any superior rights as against the receivers, than the parties at whose instance he acted. When, in a proper proceeding, pursuant to the terms of the former order, it shall be determined just what liens were created, as against the property turned over by the sheriff to the receivers, then, and not till then, it can be determined what fees the sheriff should receive. This was practically the disposition made by the judge in the order turning over the property to the receivers, as will be seen, not only from the order, but from the statement we have made of its provisions.

Our conclusion, therefore, is that the court should not have entertained the motion, but should have denied it, leaving the sheriff to wait, as all the other creditors are obliged to wait, until a determination is reached as to the validity of the respective liens which are claimed as against the fund, which, when adjusted, can include an adjustment, also, of the amount of fees to which the sheriff is entitled.

We think the order should be reversed, with $10 costs and disbursements, and the motion to tax the fees, because premature, denied, without costs. Ordered accordingly. All concur.  