Martin v. Berwick

BIJUR, J. After the sheriff had attached the account of the judgment debtor in a savings bank, judgment was rendered. Thereafter a receiver in supplementary proceedings was appointed, which demanded and received the amount of the account from the bank. The .sheriff demanded possession of this fund from the receiver, but was refused. Finally the receiver’s account was passed by the court, and the sheriff’s application for poundage denied “because of failure to collect.” The only ground for such denial which appears in the papers is the statement of plaintiff’s attorney that he “called at the office of the sheriff, and was informed that the sheriff could not collect either upon « -the attachment or the execution.” That statement is quite insufficient as a basis for any judicial action. The sheriff had done all that entitled him to poundage, and had done nothing to forfeit his right •thereto. See Lawlor v. Metal Co., 2 App. Div. 552, 38 N. Y. Supp. 471 36; Wilkinson v Raymond, 80 App. Div. 378, 380, 81 N. Y. Supp. 82; Miller v. Miller, 108 App. Div. 310, 95 N. Y. Supp. 763; Jones v. Gould, 114 App. Div. 120, 99 N. Y. Supp. 789. The order must be reversed, with $10 costs and disbursements, and upon - a new application to pass the receiver’s account the court below is directed to charge the same with the proper amount of sheriff’s fees. All concur.