I am of opinion that the provisions of chapter 418 of the Laws of 1892 (amdg. Laws of 1890, chap. 523, § 17) and of section 3307 of the Code of Civil Procedure, as amended by chapter 565 of the Laws of 1915, providing that in case of a settlement of an action in which a warrant of attachment has been issued the sheriff’s poundage shall be computed on *373the value of the property, not exceeding the sum at which the settlement was made, are not applicable here, for there is no evidence that the action has been settled. Here, so far as appears, the warrant of attachment was valid and was issued upon due proof that the plaintiff had a cause of action against the defendant and was entitled to the writ. Without the trial of the issues or any settlement of the cause of action by payment in full or in part we have merely a stipulation between the attorneys for a discontinuance of the action and that the warrant of attachment be vacated, with no provision for the payment of the sheriff’s fees and poundage. On that stipulation defendant applied at Special Term for a discontinuance of the action and to have the attachment vacated.
If there were an adjudication either on a motion to vacate the attachment or by final judgment or otherwise that the plaintiff had no cause of action or was not entitled to the warrant of attachment then, of course, the sheriff would have no lien on the property attached for his fees and poundage (Lawlor v. Magnolia Metal Co., 2 App. Div. 552; appeal dismissed in 149 N. Y. 591); but without such an adjudication or competent proof — which the plaintiff’s stipulation that he has no cause of action is not — that the warrant of attachment was not authorized, the sheriff, I think, has a lien upon the property thus lawfully attached and may hold it until his fees and poundage are paid. (Laws of 1892, chap. 418, amdg. Laws of 1890, chap. 523, § 17; Treadwell & Co. v. Mead Mfg. Co., 75 App. Div. 478; Jones v. Gould, 114 id. 120.)
The statute cited authorizes the court, on vacating a warrant of attachment, to make an order requiring the party hable for the sheriff’s fees and poundage to pay the same. The parties having failed to make provision by their stipulation for the sheriff’s fees and poundage, doubtless the defendant might have had the court determine that the plaintiff, who obtained the writ, was liable for such fees and poundage. (Tribune Assn. v. Eisner & Mendelson Co., 49 App. Div. 141; Esselstyn v. Union Surety & Guaranty Co., 82 id. 474, distinguishing on this point Treadwell & Co. v. Mead Mfg. Co., supra; Plummer v. International Power Co., 88 App. Div. 452.) I think there can be no doubt but that the court has authority *374to adjudicate summarily with respect to the liability of the plaintiff, who invoked its jurisdiction and at whose instance the warrant of attachment was levied, for the sheriff’s fees and poundage; but there would appear to be some doubt with respect to the jurisdiction so summarily to determine the liability of the defendant therefor. (See Jones v. Gould, 119 App. Div. 817; Treadwell & Co. v. Mead Mfg. Co., supra.) The court, however, could not determine that plaintiff was so liable and order him to pay the sheriff without notice of the application for such relief, and that was not given and, therefore, the court on the motion here made by defendant could not have made an order determining the plaintiff’s liability for the sheriff’s fees and poundage.
The order, therefore, accords to the defendant all the relief to which it was entitled, namely, that the action be discontinued, and, in effect, that the attachment be vacated and the property surrendered to the defendant upon payment to the sheriff of his poundage computed on the value of the property; but that until such payment the sheriff still presumptively has a lien upon the property for his poundage.
I, therefore, vote for affirmance.
Order reversed, with ten dollars costs and disbursements.