Muller v. Santler

18 Abb. Pr. 450, 28 How. Pr. 87

• Court: New York Supreme Court
• Decided: September 15, 1864
• Status: Published

Opinion

Clerke, J.

—I do not agree with Judge Leonard, that the services rendered by the sheriff in merely serving an attachment under the Code of Procedure, are such services as section 243 contemplates.

* There are services, undoubtedly, which the sheriff may render under title 7, «which may be considered similar or equivalent to these rendered by trustees under the provisions of chapter 5, title 1, and part 2 of the Revised Statutes. (3 Rev. Stat., 5 ed., 119, § 31.)

For instance, the duties he would have to perform under section 237 of the Oode, chapter 4, and the said title 7, would impose upon him the labor of receiving the proceeds of sales, paying over so much of the same as may be necessary to satisfy the judgment. In case of the sale pf any rights or shares in the stock of a corporation, he has to execute to the purchaser a certificate of the sale thereof. If any of the property has passed out of his hands, he has to repossess himself of the kame. He has to proceed to collect the notes and other evidences of debt, and the debts that may have been seized or attached under the warrant, and to prosecute any bond he may have taken in the course of such proceedings.

In short, in many instances, under title 7 of the Oode, particularly under chapter 4, powers, duties, and obligations, nearly, if not quite, as onerous devolve upon him, as those which devolve upon trustees under chapter 5, title 1, part 2 of the Revised Statutes; and it is only in such cases, and for such services that he is entitled to the compensation allowed by section 243 of the Code.

Instead of pronouncing a different decision from that in Trenor a. Fachin, I would have submitted to it on the ground of stare decisis, and would have recommended an appeal; but, that decision is, in itself, a deviation from what I consider the current of decisions on such subjects in this court.,,

I adhere to my former decisions in Bartlett a. Jessup, and Duncan a. Bradstreet.* I repeat, in consideration of the great responsibility to which the sheriff is subjected in the discharge of his duty, I do not think it unreasonable to allow him as a compensation on the settlement or withdrawal of such cases, an amount at the rate of poundage on the levy of an execution.

Let a bill be presented to me for taxation on the principles herein indicated.

The decision here referred to is that of Trenor a. Fachin (12 Abbotts' Pr., 136), which is further explained and reconciled with the decision in the text in the case of Jellinghaus a. Scheidt. Post, 452. .