Duffy v. Burton

Hatch, J.: The material facts of this case are without dispute. The defendant was an attaching creditor of the D. GL Burton Company. , At about the same time some twenty-one other attachments by different parties were issued and levies made by the sheriff thereunder. After [52] the levy of all the attachments the defendant, by arrangement with the attaching creditors, became substituted to all their interests therein, and her attorney became the attorney of record therein and represented the defendant in connection therewith. Subsequently, by negotiation, the attachments were settled and the attorney for the defendant directed the sheriff to release the levies thereunder and discontinued the actions. The effect of this arrangement was to render the defendant or her attorney liable to the sheriff for his fee's in connection with the actions, and. they could not, therefore, be continued by the sheriff for the enforcement of his fees, in the absence of collusion between the parties, and the irresponsibility of the defendant or her attorney. (Jackson v. Anderson, 4 Wend. 474; Crocker on Sheriffs, § 1162.) It is without dispute that the defendant was the party in interest in connection with all the actions in which the fees arise, for which the sheriff seeks to recover in this action; and, consequently, upon their discontinuance by her direction her liability to pay the fees became fixed. Such -liability does not rest upon an agreement to pay; it is created by operation of law. The amount of the fees having been settled by a formal order upon an appeal to the Appellate Division, taken for that purpose, such sum is conclusive upon the defendant. The testimony of Robert McC. Robinson was improperly received, as it did not appear that he possessed any authority to bind the defendant and was not authorized to speak for her. But this error was harmless, for upon the undisputed facts the plaintiff was entitled to recover. The judgment should be affirmed, with costs. All concurred. Judgment affirmed, with costs.