Nevada Bank of Commerce v. 43rd Street Estates Corp.

McGivern, J. (dissenting).

I agree completely with the Justice at Special Term, and would limit the Sheriff’s poundage to the $1,000 paid in settlement of the New York action. The statute says ‘ hot exceeding the sum at which the settlement is made ’ ’. And the settlement in this jurisdiction was $1,000. There the matter should end. Particularly is this so in the instant case where once the primary obligation was paid by the principal obligor, no obligation at all remained as to this defendant.

*231With prophetic vision, the Legislature knew what it was doing when it placed these restrictions in the statute. ‘ The Legislature in the amendatory statute has placed a limit upon the fees payable to a sheriff in circumstances, where in its opinion, such fees would otherwise be unreasonably large ” (Stojowski v. Banque de France, 294 N. Y. 135, 145). And I think the Sheriff here is being more than a bit unreasonable when he attempts to gauge his poundage on a measly New York settlement by a substantial arrangement entered into in a bankruptcy proceeding in Nevada between a Nevada bank and a Nevada hotel which went bankrupt.

And be it remembered: “ The statutory exceptions authorizing poundage * * * are in derogation of common law and must be strictly construed ” (Personeni v. Aquino, 6 N Y 2d 35, 38).

Stevens, P. J., McNally and Maceen, JJ., concur with Kupferman, J.; McGivern, J., dissents in an opinion.

Order, Supreme Court, New York County, entered on February 11, 1970, modified, on the law, and the poundage fixed in the sum of $28,930.04, and otherwise affirmed, without costs and without disbursements.