Opinion
October 1, 1943.
Leo Singer for plaintiff.
Lord, Day Lord for defendant.
Sidney Posner for John J. McCloskey, Jr., as Sheriff of New York City.
Motion by plaintiff to annul and vacate a warrant of attachment is granted upon condition that plaintiff pay to the sheriff his poundage computed in accordance with section 1558 of the Civil Practice Act in the sum of $1,084.35.
The sheriff is entitled to poundage upon the annulling or vacating of a warrant of attachment. ( Matter of Dempsey v. Lynch Co., 175 Misc. 710, affd. 261 A.D. 829.) Upon the settlement of an action subdivision 2 of section 1558 provides that the poundage shall be computed "upon the value of the property attached, not exceeding the sum at which the settlement is made". It seems to me that the circumstances here are similar to those in Morowitz v. Dadourian Export Corp. ( 179 Misc. 373), where it was held that the sheriff was to be paid the poundage upon the value of the property attached. Sufficient basis appears for the institution of the instant action. The stipulation of settlement leads to the conclusion that plaintiff has been successful in gaining what he sought in the action. In these two respects the case differs from French v. Bankverein Suisse ( 179 A.D. 371), where plaintiff received no consideration whatever from the defendant.
Plaintiff's cause of action was based upon the purchase of diamonds by his assignors from defendant. Payment for those diamonds was made by funds advanced by the Banque Diamontaire Anversoise, S.A. Plaintiff's assignors would have been entitled to receive the diamonds only under the arrangements for payment that they had with the Banque. The settlement herein provides for the transfer of the diamonds to the Diamond Corporation of London, England, to be held by the said corporation for the account of the Banque. Consequently, the effect of the settlement is the delivery of the diamonds in accordance with the original contract of purchase, for the breach of which plaintiff brought this action.
In my opinion, there was therefore a consideration passing to plaintiff for the settlement, which requires the granting of the motion upon payment of poundage fees. Settle order accordingly.