
    Sarah Miller, Respondent, v. Charles C. Miller, Defendant. Mitchell L. Erlanger, as Sheriff of New York County, Appellant.
    
      Sheriff’s poundage-where he makes a levy under an attachment — his right to hare it computed where he is ordered to discharge the lery — the court cannot order it's payment.
    
    After the sheriff of the city of New York ha.d made a levy" under a- warrant of attachment, the action in which the attachment was issued was, by- consent of .the parties and without notice to the .sheriff, discontinued without consideration and the attachment vacated and the bond canceled. The sheriff having ■ refused to relinquish his levy until his fees were paid, an order was made directing the sheriff to discharge such levy and deliver the attached property to the defendant. The sheriff took no appeal from such order, but made a motion for an order taxing his fees and directing the plaintiff or her attorney to pay the same, which motion was denied.
    
      Held, that under the special statute relating to poundage in the county of New York (Laws of 1890, chap. 528, § 17, subd. 2, as amd. by Laws of 1892, chap. 418) the act of the sheriff in relinquishing possession of the attached property operated to destroy the lien thereon which he theretofore had for his fees, and that the only remedy which thereafter remained to him was to look to the plaintiff or her attorney for the compensation to which he would have been entitled had he retained possession of the property;
    That the attachment having been discharged, and the attached property having been returned to the defendant, the court had no authority, either under section" 709 of the Code of Civil Procedure or the special statute above referred to, to order either party to the action to pay the sheriff’s fees;
    That the court, however, did have power to determine the amount of the sheriff's fees and should have exercised such power upon the sheriff’s motion.
    Per McLaughlin and’Ingraham, JJ.; Laughlin, J., concurring in result; O’Brien, P. J., and Patterson, J., dissenting in part on the ground that the sheriff was entitled to have his poundage allowed, computed upon the value of the property attached.
    Appeal by Mitchell L. Erlanger, as sheriff of Hew York county, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 1st day of May, 1905, denying the appellant’s application to tax his fees upon an attachment theretofore issued in the action, and to direct the plaintiff or her attorney to pay the same.
    
      Maurice B. Blumenthal, for the appellant.
    
      Lyman A: Spalding, for the respondent.
   McLaughlin, J.:

This action was brought to recover $206,000 for. an alleged conversion of the plaintiff’s property. At the commencement thereof the plaintiff procured an attachment which was perfected by the sheriff levying upon property of the value of $300,000. Shortly after the levy had been made under the attachment, by consent of the parties and without notice to the sheriff, the action was discontinued, the attachment vacated and the bond canceled. The sheriff, however, refused to relinquish his levy' until his fees had been paid, and upon defendant’s motion an order was made directing him to discharge the levy and deliver to the defendant possession of the property attached. ¡No appeal was taken from that order. The sheriff then made a motion to tax his fees and to- direct the plaintiff or her attorney to pay the same. The motion was denied and the sheriff has appealed.

- The fees claimed are for poundage, and the right to- them is governed by a special statute relating only to the- county of ¡New York. (Laws of 1890, chap. 523, § 17, subd. 2, as amd. by Laws of 1892, chap. 418.) This statute, among other things, provides that “ where the warrant of attachment-is vacated, set aside or discharged by order of the court, poundage upon the value of the property attached not exceeding the amount specified in the warrant, and such additional compensation for his, trouble and expenses in taking possession and preserving the property as the judge issuing the warrant allows, * * * and the, judge or court may make an order requiring the party liable therefor to pay the same to the sheriff.” It also .provides-that “if an action is settled, either before or after judgment, the sheriff is entitled to poundage upon the value of the property attached not exceeding the sum at which the settlement is máde;; the sheriff may retain the property levied upon until his fees and poundage are paid.” -

The attachment was not vacated, set aside or discharged by an order of the court, and the record shows that tife action was settled without consideration. The sheriff, therefore, was not entitled to ■poundage upon the value of the property attached in excess of the amount specified in the warrant. The action was. settled without consideration and he, therefore, was not entitled to poundage upon the value of the property attached in excess of the sum at which the settlement was made. But, notwithstanding' these facts, the sheriff was entitled to his fees/ Otherwise there is no meaning to the words used in the statute that “.the sheriff may retain the property levied upon until his fees and poundage are paid.” He had done all the law required him to do to be entitled to poundage. He had perfected the-attachment by taking the property into his possession and thereafter caring for it until the parties to the litiga- . tion had adjusted their differences, and requested a return to the person from whom it was taken. He was entitled to poundage and the statute gave him a lien upon the property which he held until it was paid. This was-a property right of which he could not be deprived by the act of the parties without his knowledge or consent. When the motion was made to compel him to relinquish his levy, he opposed it and then insisted that he had a lien upon the property for his fees. The court held otherwise and he acquiesced in the order by not appealing from it, but this did not deprive him of his right to have his fees paid, or to thereafter apply to the court to have the same adjusted to the end that he might, in an action brought for that purpose, compel the party liable therefor to pay them. Having relinquished possession of the property, the lien which he theretofore had was thereby destroyed and the only remedy which thereafter remained to him was to look to the plaintiff or her attorney for the compensation to which he would have been entitled had he retained possession of the property, but the payment of this compensation the court had no power to direct by a summary order. When the attachment was. discharged and the property attached returned to the defendant there was no authority in the court to order either party to pay the poundage, either under section 709 of the Code of Civil Procedure or the special statute above referred to relating to the county of Hew York. This we held in Treadwell & Co. v. Mead Mfg. Co. (75 App. Div. 478), where Mr. Justice Ingraham, delivering the opinion of the court, after stating that neither section 709 of the Code of Civil Procedure nor the special statute gave authority to the court to direct the payment, said: “ If the sheriff wishes to collect his poundage, his remedy is to hold his levy until it is paid, or to sue the party to the action liable for his poundage for the amount taxed.”

This decision was cited with approval and followed in Esselstyn v. Union Surety & Guaranty Co. (82 App. Div. 474) where Hirschberg, J., after pointing out the distinction between the two provisions of the statute, viz., that which permits an order requiring the payment of the sheriff’s fees and that which coniines the sheriff’s remedy to his lien upon the property attached, said: “ In the one case the lien is destroyed by the act of the parties and the sheriff may retain the property to secure his fees; in the other case the lien is destroyed by the action of the court, and the court is permitted to both determine the liability for the fees and to direct their payment.” , - .

The statute clearly contemplates that after an attachment has been issued and a levy made thereunder the sheriff is entitled to poundage. If the warrant is vacated by an. order ,of the court then the poundage is to be'determined by the value of the property attached, not exceeding the amount specified in the warrant, and such additional compensation for taking 'possession of and caring for the property and expenses as the judge issuing the warrant may allow.- . ' -

. I'can see no good reason why the same rule should not be applied where the, warrant is vacated without consideration at the request or with the consent of the party who procured it. • In each case thé result is precisely the same to the sheriff, and if lie is entitled to poundage, in the one case it would.seem that a fair and reasonable construction of the statute entitles him to it in the other. The result being the same to himj his poundage should be- determined in the same way. ’ .

As already suggested; the judge issuing the wurrant did not have the power to -direct the payment, but he did have the power to determine the amount (Treadwell & Co. v. Mead Mfg. Co., supra), and this he. should have done,

The order áppealed from, therefore, should be reversed in so far - ■ as the: motion was made to tax- the sheriff’s fees, -and the matter remitted to the Special Term for that purpose and in. all other respects affirmed,'without costs to either party.

Ingraham, J., concurred; Lau&hlin, J., concurred in result.; O’Brien, P. J., and Patterson, J., dissented in part.

Patterson, J. (dissenting in part)':

I am of the opinion that the sheriff is- entitled to poundage. That right, of course, depends entirely.upon statute, Campbell v. Cothran, 56 N. Y. 281.) The special statute relating to that subject applying only to the county of New York is subdivision 2 of . section 17 of chapter 523- of the Laws of 1890, as amended by chapter 418 of the Laws of 1892.

."Wo had occasion ’to consider and construe that statute in the case of Plummer v. International Power Co. (88 App. Div. 452); It is provided therein, that the sheriff is entitled to poundage on an attachment and that where a warrant of attachment is vacated, set aside or discharged by order of the court he is entitled to poundage upon the value of the property attached, not exceeding the amount specified in the warrant, and such additional compensation for his trouble and expenses in taking possession and preserving the property, as the judge issuing the warrant allows ; and it is also provided that if an action is settled before or after judgment, the sheriff is entitled to poundage upon the value of the property attached, ■ not exceeding the sum for which the settlement is made.

In.the record in this case it appears that the attachment was vacated by order of 'the court .made on the 20th day of February, 1905. That order provides as follows: Ordered that the above-entitled action be and the same is hereby discontinued, without costs to either party, as against the other, and that the attachment granted therein on January 5th, 1905, be vacated and that the bond upon the obtaining of such attachment be cancelled.” Here is a specific order vacating the attachment, and the sheriff is entitled to poundage ; and, as was said in the case last cited, where the attachment is absolutely discharged or vacated by order of the court, and the ■ sheriff’s relation to the subject ends, he is permitted to receive his compensation at once, and the value of the property attached is made the basis of his right, for there is apparently none other upon which poundage could be computed.

I think the order appealed from should be reversed and that the sheriff should have his poundage allowed, computed upon the value of the property attached.

O’Brien, P. J., concurred.

Order reversed as to sheriff’s fees, and matter remitted to Special Term, and in all other respects affirmed, without costs.  