
    William J. O'Brien, as Sheriff of the County of New York, Plaintiff, v. American Surety Company of New York, Defendant.
    
      Sheriff not entitled to poundage for the arrest of the debtor under a body execution, which is vacated because irregularly issued.
    
    The sheriff of the county of New York, whose right to poundage is governed by-subdivision 7 of section 17 of chapter 523 of the Laws of 1890, as amended by chapter 418 of the Laws of 1892, is not entitled to collect poundage from a judgment creditor in'a case where he made no levy upon property, and collected no money, and where the only service rendered by him consisted of taking the judgment debtor into custody under a body execution, which was subsequently vacated by the court because no property execution had been issued to the sheriff of the county in which the judgment debtor resided.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1219 of the Code of Civil Procedure.
    
      Sydney W. Stern, for the plaintiff.
    
      Henry C. Willcox, for the defendant.
   Ingraham, J.:

The question submitted is whether the defendant is liable for sheriff’s poundage. The defendant commenced an action against one Cosgrove, obtained a judgment and issued execution' against the property, which was returned unsatisfied, and thereafter issued execution against the person of Cosgrove, under which execution the sheriff took Cosgrove into custody. Subsequently a motion was made to vacate this execution upon the ground that Cosgrove was a resident of New York county, and that no execution against his property was issued to the sheriff of that county, which was granted and the execution against his person vacated, and the sheriff was directed to discharge Cosgrove from custody. Upon the receipt of this order Cosgrove was released, whereupon the sheriff demanded the payment of his poundage, which was refused, and the question submitted is whether the defendant is liable therfefor. No money was actually collected by the sheriff, nor did the defendant collect its judgment against Cosgrove by virtue of the process issued to the sheriff, or in any other way.

It is not disputed but that the right of the sheriff to poundage depends upon the provisions of the law in force when the execution was issued. The fees of the sheriff were regulated by subdivision I of section 17 of chapter 523 of the Laws of 1890, as amended by chapter 418 of the Laws of 1892. Section 17 of that act provides that for the services thereafter specified the sheriff of the city and county of New York shall collect the specified fees; and by subdivision 7 he is entitled for collecting money by virtue of an execution * * * five per centum upon the first one thousand dollars collected; two and one-half per centum on the next nine thousand collected; and one per centum on all sums over and above ten thousand dollars. Where 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.” There seems to be no other provision of the statute under which a sheriff is entitled to poundage, and to entitle the plaintiff to judgment he must bring the case within this provision. It is not claimed that the sheriff has collected any money by virtue of the execution; nor is it claimed that a settlement was made' after a levy by virtue of an execution. In this case the execution was vacated by the court, and, therefore, under the provisions of the sectionj the sheriff is entitled to poundage upon the value of the property levied upon, not exceeding the amount specified in the execution. There- was, however, no levy upon any property. The sheriff, under the execution against the person, took the person of the defendant into custody and held him in custody until released by the order of the court which vacated the execution ; but the statute restricts the right of . poundage where an execution has been vacated to the value of the property levied upon, and where no property has be'en levied upon it would seem that there is no poundage.

In Flack v. State of New York (95 N. Y. 461) if was held that the sheriff must establish his right to the fee in question under the statute in force at the time the services were rendered. The statute in force under which the claim in that case was made was substantially like the statute now in force, except as to the amount of poundage. The court there says: “ The services for which compensation is provided are those for collecting ’ the moneys called for by the execution and the fees are computable only upon the amount collected ’ and are made collectible by virtue of the execution alone. To bring the claim of a sheriff within the provisions of the statute, it is essential that he show either the collection of the moneys called for, or some interference by the plaintiff with his execution of the process that is equivalent thereto; ” and in speaking of the claim that the taking of the body of the defendant in execution is in some sense a satisfaction of the judgment while the imprisonment continues, it was said that an arrest on a body execution “is now generally considered not to operate as a satisfaction of the judgment, but simply as a suspension for the time being of other remedies of the creditor thereon. * * * It cannot in any just sense be said to be the equivalent of that collection of the moneys due upon a. judgment which is required by the statute awarding fees to the sheriff for collecting an execution.” This case was decided under the statute then in force; but those provisions, as the provisions ,in the .statute now in force, make the right of the sheriff to poundage depend upon his collection of money under the execution, or his seizure of property under it from which the execution may be satisfied; and as no money was collected by the sheriff, and iio property was levied upon by him under the execution, the sheriff is not entitled to poundage where the execution is vacated or set aside, unless it may be that where such execution is vacated by consent of the party at whose instance it was issued, such a consent might be deemed an active interference by such a party which would justify the sheriff in claiming poundage — a question which it is not necessary to determine, as there is no claim here that the defendant consented to the vacation of the execution under which the person against whom it was issued was held in custody.

It follows that the defendants were entitled to judgment; the parties, however, having waived costs, the judgment is without •costs.

O’Brien, McLaughlin and Hatch, JJ., concurred.

Judgment directed for defendants, without costs.  