
    John S. Jones, Respondent, v. George J. Gould and Others, Respondents. Nicholas J. Hayes, as Sheriff of the County of New York, Appellant.
    First Department,
    June 7, 1907.
    Attachment— when order requiring payment of sheriff’s fees premature — remedies of sheriff stated.
    Although the discharge of an attachment is conditioned upon the payment of the sheriff's fees to be taxed, the sheriff is not entitled to an order under section 17 of chapter 523 of the Laws of 1890, as amended, requiring the defendant" to pay the fees until there has been a final determination as to which party is liable therefor.
    Under such circumstances the sheriff may adopt one of several courses. He may retain possession of the property levied upon until his fees are paid, or he can release the-properly, and when it is finally determined in the action who is liable for the fees he can then apply to the court under section 17 of chapter 523 of the Laws of 1890, as amended, for au order directing that party to pay his fees, or he may sue to recover his fees from the party who is liable.
    Appeal by Nicholas J. Hayes, as sheriff, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of December, 1906, in éffect denying his motion to require the defendant Gould to pay the sheriff’s fees for the service and executiqn of an attachment, and also from an order entered in said clerk’s office on the 20th day of-December, 1906, denying a motion for a reargument.
    
      Maurice B. Blumenthal, for the appellant. 4
    
      Bush Taggart, for the respondent Gould.
   Ingraham, J.:

An attachment had been issued in this case which had been executed by the sheriff by levying upon $500,000, the property of the defendant Gould, on deposit in the Mercantile Trust Company. Gould then gave an undertaking in the sum of $500,000 under sections 687 and 688 of the Code of Civil Procedure to release the levy of the attachment, and upon that undertaking moved for an order discharging the attachment, alleging that the property levied on was his individual property and that he had given- an undertaking for the discharge of the said attachment, duly approved by a justice of this court. .That motion coming on to be heard, after reciting the facts and that a dispute had arisen between the attaching creditor and the sheriff, the Special Term directed the question to be referred to a referee as to what, if any, instructions were given to the sheriff by the plaintiff- or his attorney as to the- manner of executing the process. It was further ordered that the motion to .discharge the attachment as to all the property belonging to the defendant Gould- be granted, and the sheriff was ordered to release from the said levy the property of the defendant -Gould except as to the sum of $5,000, “ which sum the said Mercantile Trust Company is' hereby directed, to retain possession of under said levy pending final determination of the issue of poundage herein.”

The sheriff appealed from that order and this court modified the . order so as to provide that the motion to discharge the attachment be granted upon the payment of the fees of the sheriff. ' (114 App. Div. 120.) This reversed the order of the Special Term discharging the attachment, but directed that the attachment should.be discharged upon paying the sheriff’s fees, the said- fees to be taxed upon notice. The situation then was -that the attachment was to be discharged when' the sheriff’s fees which were to be taxed were paid. Subsequently,' oh -the application of the sheriff, his fees were taxed, but until such fees' were paid the original levy upon the money of the defendant Gould with the trust company remained in full force, and that is the situation as it now exists.- The sheriff was entitled to hold the $500,000 which he liad attached in the trust company . belonging to Gould until those fees were paid, and the sheriff still possesses that right. This motion was made to require Gould to pay the sheriff’s fees as taxed to the sheriff. I do not see that there is any- authority for such an order. • .

Subdivision 2 of section-17 of chapter 523 of the Laws of 1890 (as amd. by Laws of 1892, chap. 418) provides that where a warrant of attachment is discharged poundage upon the value of the property attached not exceeding the amount specified in the warrant, and certain other additional sums, may be taxed, and the judge or court may make an order requiring the party liable therefor ■ to pay the same to the sheriff. . But it has not yet been determined what party is liable to pay the sheriff’s fees so that the court can make no order requiring such party to pay them. The sheriff is undoubtedly entitled to retain the levy until his fees are paid under section 709 of the Code of Civil Procedure, but until there is some final determination as to what party is liable to pay the fees, I do not see how the court can make an order directing either party to pay them. The question under this section was presented to this court in Lawlor v. Magnolia Metal Co. (2 App. Div. 552), and it was there held that “ the giving of an undertaking to free the defendant’s property from the lien of the attachment does not impair the validity or destroy the power of the court’s mandate, but is practically a substitution of the sureties on the undertaking in place of property as security for the whole or a portion of the plaintiff’s claim;” that the attachment itself survives the giving of such undertaking"; that under the provisions of subdivision 2 of section 17 of chapter 523 of the Laws of 1890 (as amd. by Laws of 1892, chap. 418) the sheriff was allowed to retain possession of the property levied upon until the feos and poundage are paid “ whether the attachment was disr charged by order of the court or the action was settled; and while that provision would be inoperative in a case where the attachment was vacated because it was improperly granted and the- plaintiff was not entitled to have the defendant’s property held to secure any judgment that he might obtain, it is operative where it appeared that the attachment was properly obtained, and the action was either settled or the attachment discharged by reason of the substitution of other security.” That case was followed by the second department in Esselstyn v. Union Surety c& Guaranty Co. (82 App. Div. 474). • In Tribune Association v. Eisner & Mendelson Co. (49 App. Div. 141) the court without' notice to the sheriff vacated an attachment upon the defendant giving an undertaking,- and thereupon the bank with whom the money was on deposit that had been attached paid the money to the defendant. In that case the court held that where an - attachment is discharged by an order of the court the court had power to make an order requiring the party liable therefor to pay the sheriff his fees and poundage as a condition precedent to the delivery of the property to the defendant. The order was there reversed, however, because the sheriff’s bill had not been taxed upon proper evidence. In Miller v. Miller (108 App. Div. 310) it was held that where the sheriff had lost his lien upon the property there was no power to order the fees to be paid by either party to the action. This court there said: “ Having relinquished possession of the property the lien which he theretofore had was thereby destroyed and the only remedy w[aich 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 New York.” We followed in that case Treadwell & Co. v. Mead Mfg. Co. (75 App. Div. 478) where it Was said that 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.” .

It seems to. me, therefore, that the sheriff has one of several courses which he can adopt. He can retain possession of the property levied upon until his fees are paid or he can release the property levied upon, and when it is finally determined in the action who are liable for his fees lie can then apply to the court under the special statute for an order' directing that party to pay his fees, or he can sue to recover liis- fees from the party who was liable. The court below, therefore, was justified in refusing to make a summary order requiring Gould to pay the sheriff’s. fees., The order that was actually entered discharged the attachment upon payment. of the sheriff’s fees which had been taxed, with ten dollars costs of the motion. This order simply enforces the order of the court upon the appeal heretofore heard, and no harm can result inasmuch as the lien of the attachment upon the money on deposit with the trust company attached by the sheriff still exists and lie can hold that money until his fees are paid. When the action is finally determined he can either by an action or by an- application under this special act in relation to the comity of New York apply for an order requiring the party liable for his fees to pay them; but he is not now entitled to an order directing Gould or anybody else to pay them'.

■ The order appealed from should, therefore; be affirmed, with ten dollars costs and disbursements.

McLaughlin, Clarke and Lambert, JJ., concurred; Patterson, P. J., concurred in result.

Order affirmed, with ten dollars costs and disbursements.  