
    Alfred P. Martin, Doing Business under the Name of Alfred P. Martin & Co., Plaintiff, v. Herbert H. Huber et al., Defendants.
    Supreme Court, Special Term, New York County,.
    April 1, 1947.
    
      Mckc Tirschwell for defendants.
    
      Sidney Posner for John J. McCIoskey, Sheriff of the City of New York.
   Eder, J.

Motion granted. Two separate levies were made by the sheriff under the warrant of attachment. The sheriff was entitled to poundage of $212.50 with respect to defendant Rathke, who filed a surety company bond in the sum of $7,500 to discharge the attachment as against him. The sheriff, admittedly, was entitled to the poundage.

It appears that subsequently the action herein was • settled between the plaintiff and the defendants for the sum of $7,664.30, as per stipulation. The sheriff had made a separate levy under the attachment on the property of the defendant Huber (Midfield Packers) and has refused to release the merchandise from the attachment unless he is paid an additional poundage on said settlement of $7,664.30 and has refused to allow credit for the poundage already paid on the sum of $7,500.

Defendant Huber contends the sheriff is entitled to only the poundage on the difference between $7,500 and $7,664.30.

Section 1558 of the Civil Practice Act, entitled “ Fees of Sheriff ”, in subdivision 2, thereof, so far as here relevant, provides: If the 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 made * *

Settlement was°made at the sum of $7,664.30; the sheriff has already received poundage of $212.50, paid on the sum of $7,500, as mentioned. The sheriff is therefore' only entitled to additional poundage in the sum of $4.11 and will be required to refund the sum charged in excess, paid under protest.

The fact that a codefendant will benefit by the poundage paid in the original sum of $212.50 is immaterial. I do not think it was the intention of the Legislature to permit the sheriff in such a situation to exact poundage in the sum here charged.

Settle order.  