Opinion
June 20, 1960
Appeal from the Municipal Court of the City of New York, Borough of Queens, DAVID L. DUGAN, J.
Boyles Wreschner ( Walter J. Boyles of counsel), for appellant.
Sidney Posner and Lawrence Meyer for respondent.
The right to poundage is statutory ( Personeni v. Aquino, 5 A.D.2d 616). Where an execution has been vacated or set aside, subdivision 21 of section 1558 of the Civil Practice Act provides for poundage "upon the value of the property levied upon". In order to prevail herein, it will be incumbent upon the Sheriff to show an actual levy or other affirmative action in pursuance of the execution (cf. Personeni v. Aquino, supra; Manni v. Shirtcraft Co., 6 Misc.2d 925).
The complaint herein alleges that the Sheriff made a levy on real property sufficient to satisfy the judgment involved, which allegation is specifically denied in defendant's amended answer. The factual issue thus presented requires a denial of plaintiff's motion for judgment on the pleadings ( Matter of Provisero, 281 App. Div. 844).
The judgment and order should be unanimously reversed, with $10 costs to defendant and motion for judgment on the pleadings denied.
Concur — HART, DI GIOVANNA and BENJAMIN, JJ.
Judgment and order reversed, etc.