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Smith agt. Hart.

you cannot ask her for one of her most benign remedies, while in the same breath you demand a rigorous forfeiture of your opponent's estate in the subject of the controversy.

But, alternative relief can be obtained; and it has been always common, in courts of equity, for the draftsman to frame his bill with a double aspect, when he doubted the particular relief to which he considered the plaintiff entitled; so that, if the court should be against him under one view of the case, it may, nevertheless, afford him assistance in another.

The relief sought for in the present case is of this description, although not expressed in as distinct a manner as may be desired. The whole complaint, indeed, may be the better for some revision; but, as I think, in its present shape, there can be no misapprehension on the part of the court or the adverse party, it is scarcely worth while to compel the plaintiff to amend.

Motion to compel the plaintiff to elect, &c., denied.

SUPREME COURT.

Smith agt. HART.

No appeal can be taken from an order made by a county judge in proceedings

supplementary to execution in a cause originating in a justice's or county

court. None of the provisions of the Code are applicable to such cases. It is only in

actions in the supreme court, where such proceedings are had before the county judge, that an appeal is authorized.

Fourth District, General Term, July, 1855.
ALLEN, Bockes, and JAMES, Justices.
Motion to dismiss an appeal.

The case presents the following facts :-Smith obtained a judgment against Hart before a justice of the peace, filed a

Smith agt. Hart.

transcript thereof in Fulton county clerk's office, and docketed judgment thereon on the 24th of March, 1855. An execution was issued thereon to the sheriff of Fulton county on the same day. Proceedings were then taken before the county judge, under § 292 of the Code, and on the 26th March he made an order, which, after reciting that Hart had been brought before him, and witnesses examined, and that it appeared Hart had money, which he unjustly refused to apply towards the satisfaction of the judgment, and that there was danger of his leaving

the state,

Ordered, the said money to be applied towards the satisfaction of the judgment; and that Hart pay Smith $10 costs of the proceedings. Hart adjusted the matter, and paid Smith $35 in full satisfaction of the judgment and costs of the proceedings, and removed from the state. An appeal was then brought from the order of the county judge.

Dudley, for motion.
D. M Martin, opposed.

By the court-Bockes, Justice. It is obvious, that the appeal in this case is not authorized by chapter 3 of the Code of Procedure, entitled, “ Appeals to the Supreme Court from an Inferior Court.” That chapter provides only for appeals “from the judgment rendered by a county court, or by the mayor's court, or the recorder's court of cities.” (See Code, $9 314, 345, 346, 317.)

This is an appeal from an order, not from a judgment, within the meaning of § 344. In granting the order appealed from, the county judge acted as an officer, not as a court. His authority to act as an officer, as distinguished from proceedings in court, is clearly recognized by law. (See Judiciary Act, 1847, § 29, ch. 280; also chap. 470, $ 27, Sess. Laws of 1817; Code, $$ 29, 30, 31.)

The appeal in this case must be upheld—if, indeed, it can be-under $ 349 or 403 of the Code.

Can any appeal, under $ 349, be taken to this court from an

Smith agt. Hart.

order made by a county judge, pursuant to § 292, in a cause in the county court ?

Section 349 provides, that an appeal may be taken from an order made by a county judge "in any stage of the action, including proceedings supplementary to the execution,” in the five cases therein specified.

The right to appeal in this case, as it regards this action depends on the construction to be given to the language above quoted. If the action alluded to in this section 'contemplates an action in the supreme court only, then the appeal, being from an order in a case in the county court, is unauthorized under $ 319.

Section 348 provides for appeals from judgments in action in the supreme court, entered upon the report of a referee, og upon the direction of a single judge of the same court. O course, this section contemplates appeals in actions in the supreme court only.

Appeals from judgments being thus provided for, $ 349 was introduced to secure relief against improvident and erroneous orders in every stage of the action. If this language shall be deemed to apply to actions in the county court, then appeals are to be allowed from every interlocutory order in the progress of such cause, falling within either of the five cases specified by $ 349, and this, too, before final judgment in the county court. Such a construction would require the supreme court to control the practice and proceedings in actions in the county court, the same in all respects as if in its own court. But it is obvious that § 349 follows up the subject considered, and partly covered by $ 348. That section having provided for appeal: from judgments, the next provides for appeals from orders; the first by its language being confined to actions in the supremi court, and the second pointing directly to the same class o

The action, therefore, alluded to in § 349 contemplate an action in the supreme court only.

Nor does the section receive any additional scope from th words, including proceedings supplementary to the execu tion,” as it regards the question under consideration. Lest th

cases.

Smith agt. Hart.

words, "in any stage of the action," should be deemed insufficient to embrace orders after judgment, which is sometimes regarded as determining the action, the phrase "including proceedings supplementary to execution” were added.

I am brought to the conclusion, therefore, that this appeal, being from an order in a proceeding in an action in the county court, is not authorized by $ 349 of the Code.

Does the last paragraph of $ 403 give the right to appeal in a case like this under consideration ?

That section, too, must be deemed to have reference to actions in the supreme court only. Clearly, the first clause is confined to such actions, and the last clause is necessarily limited in like manner, because it points directly to those orders which it would be appropriate for a judge of the supreme court to grant; and a judge of the supreme court has no jurisdiction to allow orders in actions or proceedings in the county court. The remark at the close of the opinion in Conway agt. Hitchins, (9 Barb. 378, 387,) was not called for, and was evidently made without reflection. The appeal was unauthorized by $ 403.

There is another good reason why the appeal should be dismissed. The papers show conclusively, that the subject matter of the appeal has been settled by the parties. After the order was granted by the county judge, the parties compromised, and Hart paid, and Smith received, $35 in full satisfaction of the claim and costs. The money was not paid upon the order by coercion, but by compromise.

The appeal is therefore a mere formality, without substance, and should not occupy the attention of the court or incumber its records.

The motion to dismiss the appeal must be granted.

Hoge & Robb agt. Page and others.

SUPREME COURT.

Hoge & Robb agt. Page and others.

A sheriff, under an attachment, is not entitled to poundage in any case, except

when the property attached is actually sold. But after the levy upon an attachment (for which he is entitled to fifty cents) he

is entitled to a “compensation for his trouble and expenses, in taking posses. sion of and preserving the property,” whether sold or not; which compensation must be fixed by the officer issuing the attachment.

New-York Special Term, July, 1855.
The plaintiffs' claim in this case was $45,000.

An attachment under the Code, against the defendants, as non-resident debtors, was issued, and stocks to the amount of $8,000 levied on by the sheriff. The plaintiffs then compromised their claim for $22,500, upon which the suit was settled. The sheriff's bill for services and fees under the attachment is presented for adjustment. He claims to be allowed poundage upon the $22,500. The plaintiffs claim that he shall charge poundage only on the $8,000. This is the only question raised or presented for adjudication here.

for sheriff. opposed.

Cowles, Justice. By the Code, § 243, it is provided, that the sheriff shall receive the “same fees and compensation for services, and the same disbursements under this title (title VII.) as are allowed by law for like services and disbursements under the provisions of chapter 5, title 1, part 2, of the Revised Statutes."

The class of cases treated of in chapter 7 of the Code, are, 1. Arrest and bail. 2. Claim and delivery of personal property.

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