
    SUPREME COURT.
    Muller agt. Sautler.
    On the settlement or withdrawal of proceedings on attachment issued under the Code, the sheriff is entitled to an amount at the rate of poundage on the levy of an execution.
    New York Special Term,
    October, 1864.
    Motion on behalf of the sheriff of the city and county of New York for an adjustment of costs on attachment proceedings.
    A. J. Vanderpoel, for motion.
    
    
      , contra.
    
   Clerke, J.

I do not agree with Judge Leonard, that the services rendered by the sheriff in merely serving an attachment under the Code of Procedure, are such services as section 243 contemplates. These are services, undoubtedly, which the sheriff may render under title 7, which may be considered similar or equivalent to those rendered by trustees under the provisions of chapter 5, title 1, and part 2 of the Revised Statutes (3 R. S. 119, § 31, 5th ed). For instance, the duties he would have to perform under section 237 of the Code, chapter 4, and the said title 7, would impose upon him the labor of receiving the proceeds of sales, paying over so much of the same as may be necessary to satisfy the judgment. In case of the sale of any rights or shares in the stock of a corporation, he has to execute to the purchaser a certificate of the sale thereof. If any of the property has passed out of his hands, he has to repossess himself of the same. He has to proceed to collect the notes and other evidences of debt, and the debts that may have been seized or attached under the warant, and to prosecute any bond he may have taken in the course of such proceedings. In short, in many instances, under title 7 of the Code, particulary under chapter 4, powers, duties and obligations, nearly, if not quite as onerous, devolve upon him as those which devolved upon trustees under chapter 5, title 1, part 2 of the Revised Statutes; and it is only in such cases, and for such services, he is entitled to the compensation allowed by section 243 of the Code. Instead of pronouncing a different decision from that in Trenor agt. Fachin, I would have submitted to it on the ground of stare decisis, and would have recommended an appeal; but that decision is, in itself, a deviation from what I consider the current of decisions on such subjects in this court.

I adhere to my former decision in Bartlett agt. Jessup, and Duncan agt. Bradstreet. I repeat, in consideration of the great responsibility to which the sheriff is subjected in the discharge of his duties, I do not think it unreasonable to allow him, as a compensation on the settlement or withdrawal of such cases, an amount at the rate of poundage on the levy of an execution.

Let a bill be presented to me for taxation on the principles herein indicated. 
      
      In Trenor agt. Fachin, an attachment was issued to the sheriff of Hew York, under section 227 of the Code, for an amount exceeding $16,000. The sheriff served it by leaving a copy with different persons who were supposed to be debtors of the defendant, or to have money or property belonging to him, to an amount presumed to be sufficient to pay the plaintiff’s claim. The parties, in contemplation of a settlement or compromise before trial, submitted to the court the question as to what commissions the sheriff would be entitled to.
      Brown, Hall & Vanderpoel, for sheriff.
      
      Jeremiah Larocqde, for defendant.
      
      Leonard, J. Section 243 of the Code, directs that the sheriff shall be entitled to the same fees, compensation and disbursements, as are allowed for like services and disbursements under 2 Revised Statutes, chapter 5, title 1. The services in this case are the same that are to be rendered by trustees under the chapter of the Revised Statutes referred to. Ho goods have been seized; credits only are attached. The compensation to trustees is provided in section 31, art. 8, of the said chapter and title (3 R. S. 119, § 31, 5th ed). It is all necessary disbursements, and a commission of five per cent, on the whole sum which shall have come into their hands.
      In the case of a composition or settlement, there is no sum of money that comes to the hands of the trustees in the case of an attachment under the Revised Statutes, or to the sheriff on attachments under the Code, where the service has been made by notifying the debtors of the defendant.
      The late supreme court gave a construction to the provision of the Revised Statutes relating to the commissions of trustees, in a case where a compromise had been made and no money came to their hands.
      The true construction was given, without doubt, .in the Matter of Robert Bunch, a non-resident debtor (12 Wend. 280). In the event of a compromise between the debtor and creditor, the rule is an equitable one. That rule, in case of a voluntary settlement between the parties, Will give to the sheriff his commissions upon such sum as the debtor pays to the creditor, although it does not come to the hands of thb sheriff, as well as his necessary disbursements.
     