Opinion
Argued November 28, 1882
Decided December 12, 1882
A. Edward Woodruff for appellant.
Henry Thompson for respondent.
If the fees of the sheriff are to be regulated by subdivision 2 of section 3307 of the Code of Civil Procedure, as was held by the General Term, its order was clearly right, for the facts bring the case precisely within that subdivision. The poundage is to be estimated on the value of the property attached, not exceeding the amount of the settlement. This language shows that a sale of the property is no longer necessary to entitle the sheriff to poundage, as was held in the case of The German Am. Bank v. The Morris Run Coal Co. ( 68 N.Y. 585). But we incline to the opinion that the effect of section 3331 of the same Code is to entitle the sheriff only to the compensation provided by the former Code, for the sheriff had commenced the performance of the services for which he now seeks compensation, before the enactment of the Code of Civil Procedure. It is true that section 3331 speaks only of fees allowed by statutes, and, for the services now in question, no specific fee was allowed by law, but the compensation was to be fixed by the judge. (Code, § 243; 68 N.Y. 585.) But we think this compensation is within the spirit of the provision, and that the intention was that the compensation of officers for legal services should be regulated by the law in existence at the time the services were entered upon, and not by the subsequent enactments. Section 3331 expressly provides that in such cases the officer shall not be entitled to the fees allowed by the Code of Civil Procedure. The fee thereby allowed in cases like the present is a fixed fee, being poundage on the value of the property attached, not exceeding the sum at which the settlement is made. It does not rest in the discretion of any judge, but is to be ascertained by computation. If the sheriff is not entitled to this fee, there is no law regulating his compensation, unless we hold section 243 of the former Code to be applicable.
The appellant contends that, assuming section 243 to govern, the order made at Special Term was erroneous, because it was not made by the judge who issued the warrant of attachment. We think that in the city of New York this requirement is dispensed with by section 26 of the new Code (old Code, § 27); that the application of the sheriff under section 243 of the old Code, to fix his compensation, is a continuation of the attachment proceeding, and that the attachment was, within the terms of section 26, "a proceeding commenced before a judge out of court in an action pending in a court of record," and consequently that in the city of New York it may be continued before any of the judges of the same court.
The remaining objection made by the appellant is, that the sheriff is not entitled to compensation under section 243 of the old Code, because that section authorizes an allowance to the sheriff only "for his trouble and expenses in taking possession of, and preserving the property;" that consequently he can have no allowance unless he has taken possession of the property, and that in this case it does not appear that he did so take possession.
Upon this point the facts do not clearly appear, but we think enough was shown to make out a prima facie case on the part of the sheriff, from which, in the absence of evidence to the contrary, the court might infer as matter of fact that the sheriff did take possession. The affidavit of the deputy states that he levied upon and attached a United States bond of the value and amount of $10,000. The affidavit of the agent of the defendant states that under the attachment the sheriff levied upon property of the defendant sufficient to satisfy the plaintiff's claim, and that thereafter the defendant paid and settled the plaintiff's claim. The bond was capable of being delivered to the sheriff, or reduced by him to possession, and, in the absence of evidence to the contrary, the presumption is that he performed his duty by taking possession of it.
We think, therefore, that the judge sitting at Special Term had power to make the order, and that the amount fixed by him was within his discretion, and reviewable only at the General Term; and that the General Term having affirmed his order with a modification reducing the sum allowed, their order was right, even if the reason given therefor is not sustained.
The appellant makes the further point that he, being the plaintiff in the attachment, is not liable for the compensation of the sheriff; that as it could be allowed only on the assumption that the attached property had been taken by the sheriff into his possession, he must look to the lien which he had thereon, under sections 3343 and 709 of the Code of Civil Procedure, and that those sections indicate that the compensation is payable by the defendant in the attachment. Section 3343, subd. 12, provides that the warrant of attachment shall be deemed annulled when a judgment in favor of the plaintiff is fully paid, and section 709 provides that in such case the sheriff shall deliver property held under the attachment, to the defendant or person entitled, on payment of all the costs, charges and expenses legally chargeable by the sheriff.
There is force in the argument that the sheriff, claiming this compensation for his trouble, etc., in taking possession, cannot afterward be permitted to deny that he held the property in his possession, and that he should have required payment of his fees by the defendant before surrendering such possession, and that he could not surrender it without payment, and thus subject the plaintiff to liability. These questions do not, however, arise on this appeal. The order does not determine who is liable for these fees; it merely fixes the amount which the sheriff can recover against whoever may turn out to be liable. If the plaintiff should be pursued for payment, there is nothing in the order which precludes him from setting up this defense.
The order should be affirmed, with costs.
All concur, except TRACY, J., absent.
Order affirmed.