Opinion
November Term, 1902.
Robert B. Knowles, for the appellant.
John J. Adams, for the respondent.
We know of no authority for the provision in the order requiring the defendant to pay the poundage as taxed by the court. 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, or that portion thereof, as to which the attachment is discharged, or the proceeds thereof, if it has been sold by him." This section confers no authority upon the court after a discharge of a levy under an attachment to order either party to the action to pay the sheriff's poundage. Subdivision 2 of section 17 of chapter 523 of the Laws of 1890 as amended by chapter 418 of the Laws of 1892 provides that if an action is settled either before or after judgment the sheriff is entitled to poundage upon the value of the property attached, not exceeding the amount at which the settlement is made and that the sheriff may retain the property levied upon until his fees and poundage are paid, but this act contains no authority for such a direction in an order. The court has power to tax the sheriff's fees, and the order, so far as it taxes his poundage at the sum of forty dollars, seems to be correct. 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.
The order should be modified by striking out the last clause ordering the defendant to pay the poundage within ten days, and as modified affirmed, without costs.
VAN BRUNT, P.J., O'BRIEN, McLAUGHLIN and HATCH, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, without costs.