McCloskey v. Bril
| Decision Date | 14 June 1955 |
| Citation | 142 N.Y.S.2d 5,286 A.D. 143 |
| Parties | John J. McCLOSKEY, Sheriff of the City of New York, Plaintiff-Respondent, v. Ephraim BRIL, doing business as Trans-America Commodity Exchange, Defendant, and Maurice Lutwack, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Maurice Lutwack, Buffalo, of counsel (Edward M. Sheehan, Buffalo, attorney), for defendant-appellant.
A. G. Grayzel, Brooklyn, of counsel (Sidney Posner, New York City, attorney), for plaintiff-respondent.
Before PECK, P. J., and COHN, CALLAHAN, BREITEL and BOTEIN, JJ.
Defendant, an attorney, appeals from a summary judgment in favor of plaintiff sheriff for poundage fees arising from a levy on a warrant of attachment which was subsequently vacated.
Defendant attorney, in behalf of his client, one Bril, had filed with plaintiff sheriff a warrant of attachment issued by the Supreme Court, Erie County, in an action instituted by Bril against a foreign bank. Bril v. Suomen Pankki Finlands Bank, 199 Misc. 11, 97 N.Y.S.2d 22. The sheriff levied on the bank's funds located in New York. Subsequently, the bank, in that action, obtained summary judgment against Bril and the wrrant of attachment was vacated. The attached funds were released to the bank. The sheriff then sought to obtain from Bril the poundage fees to which he became entitled. Civil Practice Act, § 1558. Failing in this, because neither Bril nor any of his assets could be found in the state, he thereupon instituted this action for his fees against defendant, Bril's attorney, and obtained summary judgment.
It has long been the law of this state that an attorney is liable in a plenary action to the sheriff for fees incident to the execution of a process delivered by the attorney to the sheriff. Adams v. Hopkins, 5 Johns. 252; Campbell v. Cothran, 56 N.Y. 279; see Myers v. Grove, 242 App.Div. 637, 272 N.Y.S. 162. Section 1558 of the Civil Practice Act, contrary to the attorney's contention, does not relieve him of this liability. It is his view that the sheriff should have collected his fees from the attached funds before he released them to the bank. But, subdivision 17 of section 1558, upon which he relies, distinguishes between vacation and discharge of a warrant. It is only in the case of discharge and not in the case of a vacatur, that the sheriff may retain the attached property until his fees are paid. Thus, the statute provides:
'In all counties where a levy has been made under a warrant of attachment and the warrant of attachment is vacated or set aside by order of the court, the sheriff is entitled to poundage upon the value of the property attached not exceeding the amount specified in the warrant, and such additional compensation for his trouble and expense in taking possession and preserving the property as the judge issuing the warrant allows, and the judge or court may...
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