
    Henrich Haase, Pl’ff, v. William T. Levering, Def't.
    
      (New York Common Pleas, Special Term,
    
    
      Filed March, 1895.)
    
    1. Attachment—Discharge—Poundage.
    Section 709 of the Code does not entitle the sheriff to poundage, on discharge of an attachment by filing an undertaking by defendant.
    2. Same.
    In tbe ahsenre of proof, compensation is not allowable to the sheriff for trouble ai d expense in taking and preserving the property.
    Motion to release the sheriff’s lien for poundage.
    Hirsch & Rasquin, for pl’ff; Davison & Chapman, for def’t.
   PRYOR, J.

—The sheriff demands poundage on goods attached. The attachment has been discharged by an undertaking. By section 709 of the Code, on the discharge of an attachment, the sheriff must, deliver the property to the plaintiff on payment of all costs, charges and expenses legally chargeable by the sheriff; that is, at the time of the discharge. The action not being settled or determined, it is uncertain what amount, if any, the plaintiff will eventually recover; and no sum exists, therefore, on which to compute -poundage. By section 3307, subd. 2, of the Code, if the action be settled, the sheriff may have poundage “upon the value of the property attached not exceeding the sum at which the settlement is made.” But the action is not settled, and is proceeding to a result' which cannot be anticipated. In the absence of proof, compensation is not allowable to the sheriff for trouble and expense in taking and preserving the property. Nestor v. Bischoff, 123 N. Y. 517; 34 St. Rep. 425. The risk incurred by the sheriff from the possession of the property is no ground for a claim of poundage. Flack v. State, 95 N. Y. 461. 469-471.

The conclusion is that the claim for poundage be disallowed.  