
    The United States Fidelity and Guaranty Company, Plaintiff, v. Eugene Lentilhon, and Charles A. Brown, and John Fleming, Individually and as Copartners doing business under the firm name and style of Brown & Fleming, Defendants.
    (Supreme Court, New York Special Term,
    August, 1909.)
    Sheriffs — Compensation — Poundage — When judgment is vacated — Necessity of levy.
    Where, after an execution has been issued, the judgment is vacated and set aside on motion of the judgment debtor, the sheriff is not entitled to "full poundage upon the execution, though the judgment debtor has lands and tenements sufficient to satisfy the judgment, unless the sheriff has actually levied thereon.
    Motion by the sheriff to direct the payment to him of poundage upon an execution.
    
      Sumner Bowman, for plaintiff.
    Maurice B. Blumenthal, for sheriff.
   Brady, J.

On April 14, 1909, there was lodged in the office of the sheriff of the county of New York an execution in this action for the sum of $5,278.99. On April 15, 1909, pursuant to such execution, the said sheriff levied upon personal property of one of the defendants, said to be of the reasonable value of $50. On or about April 16, 1909, an application was made to this court on behalf of John Flemring, one of the defendants, to vacate and set aside the judgment and the levy made under such execution, and for leave to said defendant to serve his answer and defend this action. Thereafter, pursuant to said application, the judgment was vacated and the levy set aside. It is claimed by the sheriff that at the time said execution was lodged with him in his office as aforesaid, and thereafter and now, the defendant Fleming was and is the owner in fee of certain real estate in the county of New York, with an equity more' than sufficient in value to fully satisfy the said execution, with interest and sheriff’s fees. As alleged proof of this he offers annexed to his moving affidavit herein a card obtained by him from the Title Guarantee & Trust Company of New York, commonly called a last owner’s search,” which shows that in the office of the register of the county of New York appears the record of a deed to John Fleming for a consideration of $12,000, dated February 26, 1892, and recorded February 27, 1892, in section 5 of conveyances, liber 10, page 167, of certain real estate in said county. The said affidavit of the sheriff alleges that said search returns that there appears upon the records of said register’s office no instrument of conveyance transferring the said property from the said Fleming. The sheriff claims poundage upon the full amount of said execution. The fees of the sheriff of New York county are regulated by chapter 418, Laws of 1892. Subdivision 7 of section 2 of said act provides that the sheriff shall receive for collecting money by virtue of an execution or an attachment for the 'payment of money in an action five per centum upon the first $1,000 collected, two and one-half per centum on the next $9,000 and one per centum on all sums over and above $10,000, and when a settlement is made after a levy by virtue of an execution the sheriff is entitled to poundage upon the value of the property levied upon not exceeding the sum at which the settlement is made, and where an execution has been vacated or set aside the sheriff is entitled to poundage upon the value of the property levied upon not exceeding the amount specified in the execution. The sheriff bases his right to full poundage upon the provisions of the clause last above. A glaring absurdity will be noticed in these provisions in that when a settlement is made by act of the plaintiff after a levy the sheriff must accept compensation based upon the amount of the settlement, however small, even if the property levied upon equal in" value the amount of the execution, while if the execution is set aside after levy, even against plaintiff’s protest, he may collect full poundage if the value of the property levied upon equal the amount of the execution. It is well settled that a formal levy upon real estate is not necessary before proceeding to advertise and sell. The judgment is a lien upon the land, and the execution comes as a power to enable the creditor to reaji the fruits of the seizure already made by the docketing of the judgment. Wood v. Colvin, 5 Hill, 230; Colt v. Phoenix Ins. Co., 54 N. Y. 595. A levy is therefore not necessary to authorize the sheriff to proceed to advertise and sell real estate, but does it follow that he is entitled to collect poundage within the meaning of the statute aforesaid without an actual levy? I think not. His right is conditioned in words upon a previous levy, and such levy, though unusual and unnecessary for the valid execution of the writ, must be made, or steps equivalent to a levy taken, before a plaintiff can be virtually penalized through the vacation of the execution. The lodgment of the execution with the sheriff is not a levy. If it were so; it would be a levy as well upon real estate actually owned by a defendant but of which the sheriff had absolutely no knowledge, and if no property of said defendant came to the knowledge of the sheriff out of which to satisfy the writ, on the return of such execution necessarily nulla bona, the sheriff would actually return a writ unexecuted under which a levy existed whether the sheriff knew it or not. Assuming, however, that the sheriff would be entitled to poundage without actual levy or other steps to enforce the execution, I am of the opinion that the proof herein is insufficient tio show the value of the interest, if any, of the defendant Fleming in the real property referred to. The possible ownership of such property by Fleming was not discovered until April 20, 1909, after the execution had been stayed. While the consideration expressed in the deed may have been $12,000, the property may have been subject to a mortgage for almost that amount; the title of Fleming may have been worthless, or for many other reasons his interest in the property may have been worth much less than the amount of the execution. I think the burden is upon the sheriff not only to allege but absolutely prove its value in this application. Motion denied. Ho costs.

Settle order on notice.  