
    James Lawlor, Plaintiff, v. The Magnolia Metal Co., Defendant.
    (Supreme Court, New York Special Term,
    February, 1896.)
    Attachment — Sheriff’s fees upon discharge of, upon giving undertaking.
    Where an attachment is discharged upon the giving of an undertaking the defendant is . not entitled to a return.-of the property attached until he pays the sheriff’s fees, and. the plaintiff cannot be required to pay such • fees.
    Motion by defendant for an order requiring the plaintiff to pay the sheriff’s fees.
    Nichols & Bacon, for motion.
    Constant & Coghill, opposed.
    Tracy, Boardman & Platt, for sheriff.
   Lawrence, J.

The plaintiff obtained an attachment for $35,710.40,. on the ground that the defendant was a foreign corpóration. Defendant filed an undertaking, and'- an order was entered on the 29th. of January . discharging the attachment. No exceptions have been taken to the undertaldng, but the sheriff réfusés to deliver up the property until his fees are paid ■ for poundage and care of the property; and a motion- is now made by the defendant, upon the. undertaldng and order discharging the ' .attachment, that the plaintiff should be directed to pay the sheriff’s fees and that, such fees be taxed. It' -is conceded that the., sheriff is entitled to his fees, and that the only question is as to the amount- thereof. I confess that if this question had not been passed upon by the court in other cases, I should incline to the opinion that where the defendant gives an undertaking, pursuant to the provisions of section 688 of the Code of Civil Procedure, the intention -of the legislature was that the undertaking should stand in place.of the attachment, and that the same should be in a sufficient . sum to cover the sheriff’s fees; in other Words, that the effect off giving the undertaking, duly approved by the court and accepted by the plaintiff and the sheriff, would be the same as- -an absolute vacatur or discharge of the attachment. It has, however, been expressly decided that under chapter 418 of the Laws of 1892, amending chapter 523 of the Laws of 1890, where an undertaking is given by the defendant for the purpose, of discharging the attachment; under section 109 of the Code of Civil- Procedure,, the sheriff may retain the property until his fees are paid by. the defendant'. See opinion of Ingraham, J., in Union Square Bank v. Reichmann, Law Journal, September 11, 1895. In that case the attention of the learned, justice was called to the • cases relied upon by the defendant on this motion* and' particularly the case of Bowe v. United States Reflector Company, 36 Hun, 407, but it-was held that those cases did not apply, for the reason that the attachments therein, considered had been vacated absolutely and were , not discharged because of the sub-, stitutidn 'of other security. To the same effect -is the decision of Mr. Justice Barrett in Herrera v. Barreto, Law Journal, May 10, 1894; and see also the opinion of Andrews, J., in Colberg v. Emerson, Law Journal, March 6, 1894. Section 709 of the Code of Civil Procedure 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, except in a case where it is- otherwise specially prescribed .by law, deliver over to the- defendant or to the person entitled thereto, upon reasonable ■ demand, and upon payment of all costs, charges and expenses legally chargeable by the sheriff, all the attached personal property remaining in his hands, etc. I shall follow the construction which has been given to the Laws of 1890, 1892, and to this section of the Code of Civil Procedure in the, cases above referred to, and shall hold that the sheriff is entitled to be paid his fees by the defendant before he can be called upon to surrender the property upon which the attachment has been levied, It was • agreed upon the argument of the motion that the parties should stipulate as to the value of the property attached, or, if that could not be done, that an. inventory should be taken of the property and the value fixed thereby. I will hear counsel upon the question of the amount of the sheriff’s fees upon the settlement of the . • order to be entered on this decision. The motion of the defendant that the plaintiff pay the sheriff’s fees will, therefore, be denied, but without costs.

Motion denied, without costs.  