Opinion
June, 1934.
Order modified by eliminating therefrom the provision that Alfred L. Becker, the attorney for the plaintiff, pay to the sheriff of the county of Kings the sum of $275, and as so modified affirmed, without costs. This appeal is from an order requiring both the plaintiff and his attorney to pay to the sheriff of the county of Kings the sum of $150, charged for the employment of two keepers of certain attached property, and the further sum of $125, representing the statutory poundage of the sheriff in connection with the levy. While the attorney may be liable for the sheriff's fees in a common-law action ( Campbell v. Cothran, 56 N.Y. 279; Gadski-Tauscher v. Graff, 44 Misc. 418), he is not liable when payment is sought to be enforced by the summary proceeding provided by subdivision 18 of section 1558 of the Civil Practice Act, which provides that "the judge or court may make an order requiring the party at whose instance the attachment is issued to pay the same to the sheriff." The word "party," as used in the act, does not include the attorney for the party. Appeal from order denying motion to resettle the order entered on the 29th day of June, 1933, dismissed. Young, Hagarty, Carswell and Scudder, JJ., concur; Davis, J., concurs with that portion of the decision that eliminates the responsibility of the attorney, and dissents on the question of liability as to the plaintiff for the time beyond the agreed period, at which time a release was given. The sheriff could not legally require that an agreement be furnished by one not a party to the action as a condition of withdrawing the "keepers" employed by him.