
    Josephine Personeni, Respondent, v. Cyrus Aquino, Defendant, and John J. McCloskey, as Sheriff of the City of New York, Appellant.
    Argued January 7, 1959;
    decided May 21, 1959.
    
      
      Sidney Posner and A. G. Graysel for appellant.
    I. When the levy and execution herein became void by operation of law because of plaintiff’s failure to comply with section 687-a of the Civil Practice Act, it constituted and was equivalent to the execution being “vacated or set aside ” within the terms and meaning of subdivision 19 of section 1558 of the Civil Practice Act entitling the Sheriff to poundage thereunder. (Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634; Matter of Rathscheck, 300 N. Y. 346; Matter of Deth v. Castimore, 245 App. Div. 156; Jackson v. Citizens Cas. Co., 252 App. Div. 393; Prudential Ins. Co. v. Stone, 270 N. Y. 154; Fosdick v. Globe Ind. Co., 189 App. Div. 696; Manni v. Shirtcraft Co., 6 Misc 2d 925; Matter of Dempsey v. Lynch Co., 175 Misc. 710, 261 App. Div. 829; Hathaway v. Howell, 54 N. Y. 97; Smith v. Smith, 60 N. Y. 161; Walker v. Henry, 85 N. Y. 130.) II. The failure of plaintiff to comply with subdivisions 6 and 7 of section 687-a constituted interference, entitling the Sheriff to poundage regardless of plaintiff’s explanation for such noncompliance. (Bolton v. Lawrence, 9 Wend. 436; Parsons v. Bowdoin, 17 Wend. 14; Campbell v. Cothran, 56 N. Y. 279; Flack v. State of New York, 95 N. Y. 461; Benedict v. Wright, 19 Hun 27; Zarski v. Wohl & Cie, 186 Misc. 824.) III. Poundage is predicated on the value of the property levied upon and in case of a debt the unpaid amount thereof is prima facie its value. (Potter v. Merchant’s Bank, 28 N. Y. 641; Booth v. Powers, 56 N. Y. 22; Western R. R. Co. v. Bayne, 75 N. Y. 1; Stark v. Public Nat. Bank, 123 Misc. 647; Outhouse v. Outhouse, 13 Hun 130; Blumenthal v. Lewy, 82 App. Div. 535.) IV. The court upon motion may direct that an execution creditor and his attorney shall pay poundage. (Manni v. Shirtcraft Co., 6 Misc 2d 925; Myers v. Grove, 242 App. Div. 637; McCloskey v. Bril, 1 N Y 2d 755.)
    
      Jacob D. Fishman for respondent.
    I. Interference by an executant to warrant judicial imposition of poundage fees is interference that is the equivalent of collection. Mistake or mistaken judgment of an executant or her attorney is not such interference. (Flack v. State of New York, 95 N. Y. 461; Nelson v. Board of Higher Educ., 263 App. Div. 144, 288 N. Y. 649; Bose v. United Employment Agencies, 200 Misc. 176; Chamberlain v. Western Transp. Co,, 45 Barb. 218, 44 N. Y. 305; Campbell v. Cothran, 56 N. Y. 279; Ryle v. Falk, 24 Hun 255, 86 N. Y. 641; Miller v. Miller, 108 App. Div. 310; Williams v. Kahler, 274 App. Div. 984; Stojowski v. Banque de France, 294 N. Y. 135.) II. Assessment of poundage against an executant’s attorney may only be made in a plenary proceeding. (Myers v. Grove, 242 App. Div. 637.)
   Dye, J.

In this appeal, by permission, we deal with the right of a Sheriff to collect or receive poundage fees on a duly levied execution for debt on which no collection had been made, because the execution had been rendered null and void by operation of law. In this instance it was due to the circumstance that the judgment creditor failed to take action to collect the debt within 120 days, or to obtain an order extending the time to do so as required by subdivision 7 of section 687-a of the Civil Practice Act.

The right of a Sheriff to collect and receive poundage is wholly statutory (Civ. Prac. Act, § 1558). In substance that section provides a percentage fee based on the amounts actually collected (subd. 20) and, when no collection has been made, the Sheriff may, nonetheless, be entitled to poundage upon the value of the property levied upon (1) where a settlement is made after a levy, not exceeding the sum at which the settlement is made, or (2) where an execution has been “vacated or set aside ” upon the value of the property levied not exceeding the amount specified in the execution (subd. 19 as it then was).

The essential facts are not in dispute. The plaintiff-respondent Personeni was awarded a judgment by the Supreme Court, New York County, in the sum of $16,766.88 against the defendant Cyrus Aquino. Examination of the debtor Aquino in proceedings supplementary to execution disclosed that he was the owner of a bond and mortgage which was a lien on premises at 389 Broome Street, New York City, on which there was an unpaid balance of $16,500 payable at the rate of $250 quarterly. The Sheriff duly levied on the debt and demanded payment which was refused.

The bond and mortgage were then in the possession of Aquino’s attorney who resided and had his office in Kingston, Ulster County, N. Y. The documents were being held by him under legitimate circumstances fully described in the record and which have no particular significance in the decision of the precise question here involved, namely: whether the failure of a judgment creditor to take action, as authorized and within the time limitations prescribed in subdivision 7 of section 687-a of the Civil Practice Act, amounts to an interference equivalent to having the execution vacated or set aside within the meaning of subdivision 19 of section 1558 as it then was, the substance of which is now incorporated in subdivision 21 of new section 1558 (L. 1958, ch. 942).

It is clear that the within case does not fall within the purview of those statutory exceptions allowing poundage without collection. Nonetheless, the appellant Sheriff claims he is entitled to his poundage because the failure of the plaintiff-respondent to proceed timely under subdivision 7 of section 687-a so interfered with his collection that it amounted to a vacatur of the execution.

Interference as a basis for allowing poundage without collection was first enunciated as an intervention of the plaintiff by the performance of some act which in law is deemed to be the equivalent of collection (Flack v. State of New York, 95 N. Y. 461; Campbell v. Cothran, 56 N. Y. 279) which in effect and substance contemplates an affirmative act on the part of the plaintiff which actively interferes with the execution of process and which, in effect, is equivalent to collection. While the respondent’s inaction may have rendered the within execution ineffective and void by operation of law, it cannot be said that such inaction was equivalent to collection within the meaning of the exceptions mentioned in the statute. The statutory exceptions authorizing poundage for noncollection—vacatur or the setting aside of the execution—are in derogation of common law and must be strictly construed. When so read the statutory intendment underlying the right to collect and receive poundage contemplates action of an affirmative rather than a negative nature.

The order appealed from should be affirmed, with costs.

Froessel, J. (dissenting).

I dissent and vote to reverse the orders below, with costs, and to grant the Sheriff’s motion for poundage as against the plaintiff herein, but not against his attorney, since this is not a plenary action (McCloskey v. Bril, 1 N Y 2d 755).

On December 13, 1955 an execution was issued to the Sheriff on a judgment recovered by plaintiff in the sum of $16,776.88 against defendant Cyrus Aquino. On December 14, 1955 the Sheriff levied on a debt, evidenced by a bond and first mortgage on premises 389 Broome Street, New York City, owing to defendant Aquino by 389 Broome Street, Inc. The debtor, by Aniello N. Aquino, its secretary, on December 21, 1955 certified to the Sheriff that the unpaid balance of said bond and mortgage was $16,500, payable in quarterly installments of $250, with interest. It appears that the unpaid balance of the mortgage becomes due in June, 1964. A copy of the debtor’s certificate was mailed to plaintiff’s attorney on December 23, 1955.

Neither plaintiff nor her attorney took any further action with respect to said execution and levy, and, by plaintiff’s having omitted to commence an action for the recovery of the debt evidenced by the bond and mortgage within 120 days pursuant to subdivision 7 of section 687-a of the Civil Practice Act, or to obtain an order .extending the time so to do, the levy became void, except as to any payments theretofore made.

Subdivision 19 of section 1558 of the Civil Practice Act then provided that “ where an execution has been vacated or set aside, the sheriff is entitled to poundage upon the value of the property levied upon ’’ (emphasis supplied). It did not provide, as did subdivision 18 immediately preceding, in the case of a levy under a warrant of attachment, that where the warrant ‘1 is vacated or set aside by order of the court, the sheriff is entitled to poundage ” (emphasis supplied).

Hence it seems to me quite clear that when in dealing with levies on executions the Legislature omitted from subdivision 19 the words “ by order of the court ” after the words “ vacated or set aside ” it intended to include executions “ vacated ” in any manner provided by law. That would include a levy under an execution rendered void by operation of subdivision 7 of section 687-a of the Civil Practice Act. Additional judicial action is not provided for by the plain language of the statute, and we may not infer it.

To hold otherwise would permit litigants to escape their statutory obligation to pay poundage after the aid of the Sheriff has been invoked, and his service has been rendered, by simply waiting 120 days after the issuance of an execution to the Sheriff.

Judges Desmond, Fuld, Van Voorhis and Burke concur with Judge Dye; Judge Froessel dissents in an opinion in which Chief Judge Conway concurs.

Order affirmed.  