The order appealed from involves the right of the sheriff of New York county to retain property attached until poundage is paid, where the attachment was vacated on consent, the stipulation reciting “ that the plaintiff has no cause of action against the defendant under the facts set forth in the complaint or otherwise and that he desires to withdraw the action brought.” It is - undisputed “that no consideration of any sort passed from the defendant to the plaintiff, directly or indirectly, in consideration of the discontinuance of this action or the making of this stipulation.” *372This is not, therefore, a case where the attachment was vacated by the court because it was invalid or unwarranted; neither is it a case where the attachment was discharged by the defendant. The court correctly held that this was. a case of a settlement, and the statute then in effect — prior to Laws of 1917, chapter 265 — provided (Laws of 1915, chap. 565, amdg. Laws of 1890, chap. 523, § 17): “ If the action is settled, either before or after judgment, the sheriff is entitled to poundage, upon the value of the property attached, not exceeding the sum at which the settlement is made.” The right of a sheriff to his fees is purely statutory. (Campbell v. Cothran, 56 N. Y. 279.) The difficulty of the sheriff in this case is that there is no basis upon which poundage can be reckoned because no sum was paid in settlement. Ordinarily, there is some consideration for the settlement of an action, either direct or indirect, and where a case afforded an indication that, despite the recitals in the stipulation, there was some concealed consideration, the courts would go far in assisting the sheriff to disclose the facts. But where it is unchallenged that not only was there no consideration for the settlement, but that there was no basis for instituting the action, it would violate the fundamental law to require the defendant to pay the sheriff for having seized and held his property against the will of the defendant and without any fault on the part of the defendant. (Bowe v. United States Reflector Co., 36 Hun, 407.)
It. follows that the order so far as appealed from authorizing the sheriff to retain the property of the defendant was unwarranted and must be reversed, with ten dollars costs and disbursements to the defendant.
. Clarke, P. J., Scott and Davis, JJ., concurred; Laughlin, J., dissented.