Bradley v. Blue Ridge Hosiery Mill

56 Misc. 125, 106 N.Y.S. 1107

• Court: City of New York Municipal Court
• Decided: October 15, 1907
• Status: Published

Opinion

Deleilanty, J.

Upon the conceded facts of this case I am of the opinion that the defendant is entitled to recover, primarily of plaintiff, the amount of money, with legal interest thereon, which was taken from its agent under the irregular execution issued and subsequently vacated herein. If there be any doubt about this an examination of the statutes and authorities applicable thereto will soon dispel it. (See the provisions of law regulating the fees of the sheriff of New York county, viz., Laws of 1890, chap. 523, as amd. by Laws of 1892, chap. 418, § 17, subd. 7; also Campbell v. Cothran, 56 N. Y. 279; Kidd v. Curry, 29 Hun, 215; and on the question of restriction, Hacbler v. Myers, 132 N. Y. 363.) The sheriff having actedmnder an execution valid and regular on its face, he is entitled, the service having been completed, to his poundage, notwithstanding the judgment and process were vacated. If so entitled to his fees, it follows they must be paid by plaintiff, the party ■upon whose initiative he made the levy, and it is no answer thereto to say that he is barred of his fees under the execution simply because the warrant of attachment herein is still standing. I conclude, therefore, that the order of August 9, Í 907, should be vacated and that an order be entered in lieu thereof directing and requiring the plaintiff, or his attorney, to pay over and deliver to W. M. Ailing, the person from whom the money was taken under the execution referred to,' the sum of $819.05, the. amount collected, with interest thereon from the date of such collection, together with $10 costs of this motion, plaintiff to be stayed in the action until compliance therewith.

Ordered accordingly.