Zarski v. Wohl & Cie

New York Supreme Court

Zarski v. Wohl & Cie

186 Misc. 824, 61 N.Y.S.2d 115, 1946 N.Y. Misc. LEXIS 1988

CourtNew York Supreme Court

DecidedFebruary 28, 1946

StatusPublished

Cited by3 cases

This text of 186 Misc. 824 (Zarski v. Wohl & Cie) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zarski v. Wohl & Cie, 186 Misc. 824, 61 N.Y.S.2d 115, 1946 N.Y. Misc. LEXIS 1988 (N.Y. Super. Ct. 1946).

Pincite

Opinion

Hecht, J.

The Sheriff of the City of New York moves for an order requiring plaintiff to pay poundage pursuant to subdivision 18 of section 1558 of the Civil Practice Act. The sheriff served a certified copy of a warrant of attachment issued herein as required by section 917 of the Civil Practice Act on funds of defendant deposited in the Guaranty Trust Company of New York. The bank held the funds subject to the provisions of Executive Order No. 8389 (Code of Fed. Beg., Cum. Supp., tit. 3, p. 645), as amended, until it could be furnished with a license from the Treasury Department permitting payment. Subdivision 2 of section 1558 of the Civil Practice Act prescribes a fee for making a levy. However, the sheriff was prevented from fully executing the warrant due to the existence of a war “ freezing ” order and due to the failure of the plaintiff to serve certified copies of ex parte orders which the plaintiff had obtained extending the time in which to bring an action to reduce the attached property to the sheriff’s actual custody, as required by subdivision 1 of section 922. Actually, therefore, at the time of the entry of judgment herein, there was no war[825]*825rant of attachment to be “ vacated ” nor could the warrant be considered “ annulled ”, since "it had already become void by operation of law due to plaintiff’s failure to comply "with section 922 of the Civil Practice Act.

Where the sheriff is prevented from fully executing the warrant by an act or interference of the plaintiff, the sheriff is entitled to poundage (Parsons v. Bowdoin, 17 Wend. 14; Campbell v. Cochran, 56 N. Y. 279; Flack v. State of New York, 95 N. Y. 461). In the instant case it was primarily plaintiff’s neglect which made it impossible for the sheriff to fully execute the warrant of attachment.

Motion is granted. Settle order.

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Hecht, J.

The Sheriff of the City of New York moves for an order requiring plaintiff to pay poundage pursuant to subdivision 18 of section 1558 of the Civil Practice Act. The sheriff served a certified copy of a warrant of attachment issued herein as required by section 917 of the Civil Practice Act on funds of defendant deposited in the Guaranty Trust Company of New York. The bank held the funds subject to the provisions of Executive Order No. 8389 (Code of Fed. Beg., Cum. Supp., tit. 3, p. 645), as amended, until it could be furnished with a license from the Treasury Department permitting payment. Subdivision 2 of section 1558 of the Civil Practice Act prescribes a fee for making a levy. However, the sheriff was prevented from fully executing the warrant due to the existence of a war “ freezing ” order and due to the failure of the plaintiff to serve certified copies of ex parte orders which the plaintiff had obtained extending the time in which to bring an action to reduce the attached property to the sheriff’s actual custody, as required by subdivision 1 of section 922. Actually, therefore, at the time of the entry of judgment herein, there was no war[825]*825rant of attachment to be “ vacated ” nor could the warrant be considered “ annulled ”, since "it had already become void by operation of law due to plaintiff’s failure to comply "with section 922 of the Civil Practice Act.

Where the sheriff is prevented from fully executing the warrant by an act or interference of the plaintiff, the sheriff is entitled to poundage (Parsons v. Bowdoin, 17 Wend. 14; Campbell v. Cochran, 56 N. Y. 279; Flack v. State of New York, 95 N. Y. 461). In the instant case it was primarily plaintiff’s neglect which made it impossible for the sheriff to fully execute the warrant of attachment.

Motion is granted. Settle order.

John C. Lankenau, Esq., as Receiver of Lester D. Brown, D/B/A L. D. Brown Co. v. Coggeshall & Hicks, Applicant-Appellee. This Case Came Up on Appeal Under the Style SEC v. Brown, That Used in the District Court. Upon Request, However, the Case on Appeal Has Been Renamed, as Indicated. Securities and Exchange Commission v. Lester D. Brown, D/B/A L. D. Brown Co.

350 F.2d 61 (Second Circuit, 1965)

In re the Accounting of Batyi

193 Misc. 999 (New York Surrogate's Court, 1948)

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Bluebook (online)

186 Misc. 824, 61 N.Y.S.2d 115, 1946 N.Y. Misc. LEXIS 1988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zarski-v-wohl-cie-nysupct-1946.

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