Rialto Security Corp. v. Harrison

119 Misc. 145

Opinion

Marsh, J.

The plaintiff levied an execution against the salary of the defendant under which the sheriff was directed to collect five dollars a week. After thirty dollars had been collected the plaintiff notified the sheriff not to proceed further as the judgment had been settled. It appears that the settlement was for the full amount due or approximately that amount. The question now arises whether the sheriff is entitled, under the Civil Practice Act, section 1558, subdivision 7, to poundage on the full amount of the settlement or only on the amount collected. By the last sentence of the subdivision referred to he is entitled to poundage on “ the value of the property levied upon, not exceeding the sum at which the settlement is made.” The Appellate Division in this department has held that even though the liability upon the judgment has been extinguished, an execution under section 1391 of the Code of Civil Procedure is a continuing levy and continues in effect until the order directing its issue is modified or until it is nullified by a discharge in bankruptcy. Ulner v. Doran, 167 App. Div. 259; Brenen v. Dahlstrom Metallic Door Co., 189 id. 685. Neither of these events has occurred. The plaintiff cannot deprive the sheriff of his fees by his own act. O’Brien v. National Conduit & Cable Co., 43 Misc. Rep. 327. The sheriff is entitled to poundage on the full amount of the settlement, and his fees are accordingly taxed at thirty dollars and fifty-three cents.

Ordered accordingly.