I am of the opinion that the sheriff is- entitled to poundage. That right, of course, depends entirely.upon statute, Campbell v. Cothran, 56 N. Y. 281.) The special statute relating to that subject applying only to the county of New York is subdivision 2 of . section 17 of chapter 523- of the Laws of 1890, as amended by chapter 418 of the Laws of 1892.
."Wo had occasion ’to consider and construe that statute in the case of Plummer v. International Power Co. (88 App. Div. 452); It *315is provided therein, that the sheriff is entitled to poundage on an attachment and that where a warrant of attachment is vacated, set aside or discharged by order of the court he 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 expenses in taking possession and preserving the property, as the judge issuing the warrant allows ; and it is also provided that if an action is settled before or after judgment, the sheriff is entitled to poundage upon the value of the property attached, ■ not exceeding the sum for which the settlement is made.
In.the record in this case it appears that the attachment was vacated by order of 'the court .made on the 20th day of February, 1905. That order provides as follows: “ Ordered that the above-entitled action be and the same is hereby discontinued, without costs to either party, as against the other, and that the attachment granted therein on January 5th, 1905, be vacated and that the bond upon the obtaining of such attachment be cancelled.” Here is a specific order vacating the attachment, and the sheriff is entitled to poundage ; and, as was said in the case last cited, where the attachment is absolutely discharged or vacated by order of the court, and the ■ sheriff’s relation to the subject ends, he is permitted to receive his compensation at once, and the value of the property attached is made the basis of his right, for there is apparently none other upon which poundage could be computed.
I think the order appealed from should be reversed and that the sheriff should have his poundage allowed, computed upon the value of the property attached.
O’Brien, P. J., concurred.
Order reversed as to sheriff’s fees, and matter remitted to Special Term, and in all other respects affirmed, without costs.