Haase v. Levering

38 N.Y.S. 432, 1 N.Y. Ann. Cas. 404, 72 N.Y. St. Rep. 829

Opinion

PRYOR, J.

The sheriff demands poundage on goods attached. The attachment has been discharged by an undertaking. By section 709 of the Code, on- the discharge of an attachment, the sheriff must deliver the property to the plaintiff on payment of all costs, charges, and expenses legally chargeable by the sheriff; that is, at the time of the discharge. The action not being settled' or determined, it is uncertain what amount, if any, the plaintiff will eventually recover; and no sum exists, therefore, on which to compute poundage. By section 3307, subd. 2, of the Code, if the action be settled, the sheriff may have poundage “upon the value of the property attached not exceeding the sum at which the settlement is made.” But the action is not settled, and is proceeding to a result which cannot be anticipated. In the absence of proof, compensation is not allowable to the sheriff for trouble and expense in taking and preserving the property. Nestor v. Bischoff, 123 N. Y. 517, 25 N. E. 1046. The risk incurred by the sheriff from the possession of the property is no ground for a claim of poundage. Flack v. State, 95 N. Y. 461, 469-471.

The conclusion is that the claim for poundage be disallowed.