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McCLOSKEY v. BOYLES

26 Misc.2d 74 (1960)

John J. McCLoskey, as Sheriff of the City of New York, Respondent, v. Walter J. Boyles, Appellant.

Supreme Court, Appellate Term, Second Department.

June 20, 1960

Attorney(s) appearing for the Case

Boyles & Wreschner (Walter J. Boyles of counsel), for appellant. Sidney Posner and Lawrence Meyer for respondent.

Concur — HART, DI GIOVANNA and BENJAMIN, JJ.

Per Curiam.

The right to poundage is statutory (Personeni v. Aquino, 5 A.D.2d 616). Where an execution has been vacated or set aside, subdivision 21 of section 1558 of the Civil Practice Act provides for poundage "upon the value of the property levied upon". In order to prevail herein, it will be incumbent upon the Sheriff to show an actual levy or other affirmative action...

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