
    John S. Jones, Respondent, v. George J. Gould and Others, Respondents. Nicholas J. Hayes, as Sheriff of the County of New York, Appellant.
    First Department,
    June 15, 1906.
    Sheriff’s right to poundage on attached property ■— property not released from poundage although undertaking he given — when plaintiff cannot dispute sheriff’s right to poundage.
    The right of a sheriff of the county of New York to poundage on property attached is governed by subdivision 2 of section 17 of chapter 523 of the Laws of 1890,- as amended by chapter 418 of the Laws of 1893, and also by the provisions of section 709 of the Code of Civil Procedure. By virtue of these statutes an attachment cannot be discharged until the sheriff’s fees and poundage arc paid.
    V
    A defendant by giving an undertaking to discharge an attachment on his property admits that the levy was valid, but the levy is not discharged by such undertaking until the sheriff’s foes and poundage have been paid.
    A plaintiff in whose behalf an attachment has been made who does not repudiate an undertaking given by the defendant in lien thereof cannot dispute the sheriff's claim to poundage.
    
      Appeal by Hicholas J. Ilayes, as sheriff of the county of Hew York, from an order of the Supreme Court, made at the Hew York Special Term bearing date the 22d day of March, 1906, and entered in the office of the clerk of the county of Hew York, discharging an attachment as to the property of the defendant Gould, and appointing a referee to take testimony as to any instructions given the sheriff regarding the manner of levy.
    
      Maurice B. Blumenthal, for the appellant.
    
      David McClure, for the plaintiff, respondent.
   McLaughlin, J.:

Action to recover damages for the breach of a contract in which a warrant of attachment was issued against the property of the defendants on the ground that they were non-residents. The amount which the plaintiff claimed he was entitled to recover was the sum of $460,000 and interest from a specific date.

The warrant of attachment commanded the sheriff of the county of Hew-York “to attach and safely keep so much of the property ” of the defendants within said county which they had at the time the warrant was issued or which they might have at any time before final judgment as would be sufficient to satisfy said claim and the costs and expenses of the action. After the warrant had been delivered to the sheriff he, through his deputy, levied upon the sum of $500,000 belonging to the defendant Gould and deposited by him with the Mercantile Trust Company. Subsequently Gould gave an undertaking conditioned to pay the amount of any judgment which the plaintiff might recover in the action against him either jointly or severally with the other two defendants, not exceeding the sum of $500,000, for the return to him of the money attached. The .undertaking wras approved and he thereupon applied, upon notice to the plaintiff, for an order discharging the attachment. Oil the return of the motion the sheriff, by counsel, appeared in the proceeding and made an application to have his fees and poundage taxed. The application was based upon an affidavit of a deputy showing the issuance of the attachment; the levy made thereunder and the return thereto ; the amount claimed ; the value of the property attached, and that the fees of the sheriff, under chapter 418 of the Laws of 1892, amounted to $4,775, that is, five per cent on the first $1,000; two and a half per cent on the next $9,000, and one per cent on $450,000, the balance of the plaintiff’s claim. By permission of the court the plaintiff was permitted to present affidavits to the effect that the levy made by the sheriff was in violation of instructions; that plaintiff’s counsel instructed him to attach only a certain “ debt due from said syndicate managers out of the syndicate fund to said defendants as individuals and subscribers to said fund.” The fact that any such instructions were given was denied by the sheriff or his deputy to whom the warrant of attachment was given for the purpose of making a levy thereunder.

The learned justice sitting at Special Term was evidently of the opinion that the right of the sheriff to fees and poundage depended upon the determination of'the question of fact thus presented, inasmuch as he directed the sheriff to discharge the attachment as to all of the property levied upon, except the sum of $5,000 which the trust company was directed to retain in its possession pending a final determination as to whether or not the sheriff was entitled to poundage, and appointed a referee to take testimony as to what, if any, instructions were given to the sheriff by the plaintiff or his attorney as to the manner of executing the writ of attachment. The sheriff appeals from the order.

The right of the sheriff to poundage in the county of New York is fixed by section 17, subdivision 2, of chapter 523 of the Laws of 1890, as amended by chapter 418 of the Laws of 1892, and whether or ribt, in the present case, he is entitled to the fees claimed before the attachment could be' discharged, must be determined by this statute and section 709 of the Code of Civil Procedure. This section of the Code provides that “Where a warrant of attachment is vacated or annulled, or an attachment is discharged, upon the application of the defendant, the sheriff must * * * deliver over to the defendant * * * upon payment of all costs, charges and expenses legally chargeable by the sheriff, all the attached personal property remaining in his hands or that portion thereof as to which the attachment is discharged,” and the provisions of the statute of 1890, as amended in 1892, in addition to fixing the fees to which a sheriff is entitled for levying a warrant of attachment, provides that “ the sheriff may retain the property levied upon until his fees and poundage ave paid.” By these provisions of the statute the attachment could not be discharged and the property returned to the defendant until the sheriff’s fees and poundage had been paid.

The plaintiff alleged he had a claim amounting to $460,000 against the defendants for the breach of a contract, and for the purpose of satisfying any judgment he might recover in an action to enforce such claim (the defendants being non-residents) he obtained the writ of attachment, which the sheriff perfected by making a levy thereunder and return thereto. The defendant Gould recognized that a valid levy had been made under the attachment when he gave the undertaking for the purpose of having it discharged and the attached property returned to him. (Code Civ. Proc. §§ 687, 688.) The undertaking was for the plaintiff’s benefit. The condition of it was that Gould would, on demand, pay to the plaintiff the amount of any judgment which he might recover in the action 'against him either jointly or severally with the other defendants, not exceeding the sum of $500,000. The giving of the undertaking was, in effect, the substitution of it for the property which had been attached. But this, of itself, did not entitle Gould to have the' attached property returned to him, because the sheriff had a right to hold it until his fees and poundage had been paid. The statute so provides. The defendant Gould, so far as appears, recognizes this fact because he does not object to paying the fees and poundage. The plaintiff is the only one who objects, and the undertaking having been given for his benefit, and he in no way having repudiated it, "he is not in a position to dispute the sheriff’s claim. Indeed, it might well be doubted whether, in any event, having obtained the mandate of the court commanding the sheriff to attach and safely keep so much of the property ” of the defendants in his county as would satisfy the claim, such mandate could be qualified by oral instructions to only levy upon certain property.

But it is unnecessary to determine that question because a levy was made, which was recognized by the defendant owning the property attached, who gave an undertaking to have it discharged, and of which the plaintiff still has the benefit. To hold otherwise might result in permitting the plaintiff to obtain, through the medium of the sheriff, the benefit of an attachment without any one paying his fees and poundage. All that is necessary to hold is, that the attach' ment having been discharged by the defendant Gould giving the undertaking provided'by statute, he was, on paying the sheriff’s fees and poundage, entitled to the return of the property attached, and this is but a reiteration of the rule several times laid down by this court. (Lawlor v. Magnolia Metal Co., 2 App. Div. 552; Plummer v. International Power Co., 88 id. 452; Esselstyn v. Union Surety & Guaranty Co., 82 id. 474; Miller v. Miller, 108 id. 310.)

If the foregoing views be correct, then the order appealed from should be modified, so as to provide that the motion to discharge the attachment be granted upon payment of the sheriff’s fees (the amount of such fees, unless agreed upon, to be taxed upon notice), and as thus modified the same should be affirmed, with ten dollars costs and disbursements to the appellant.

O’Brien, P. 3., Ingraham, Clarke and Houghton, JJ., concurred.

Order modified as directed in opinion and as modified affirmed, with ten dollars costs and disbursements to appellant. Settle order on notice.  