Opinion
February 28, 1946.
Sidney Posner for Sheriff of the City of New York.
E. Louis Gothelf for plaintiff.
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. Reg., 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 warrant 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.