¶1The objection to tbe summons is not one that can be made available in tbis court. Tbat objection was made in tbe court below upon a motion to dismiss tbe summons, for a variance between it and complaint. That was a mere question of practice in tbat court, tbe decision of which is not a subject of review here. If the defendant wished to present tbe matter before tbis court on appeal, it could only be by setting it up in tbe answer in abatement of the suit.
¶2Even if such bad been done in the court below, tbe defendant waived bis right to review it on appeal, by answering in bar. We have repeatedly so held, and it is now the settled practice of this court on appeal. 1 E. D. Smith Rep. 412, 615.
¶3Tbis action was to recover from tbe constable tbe amount of an execution delivered to him to be executed, on the ground tbat he neglected to return it within five days after tbe return day, under tbe provisions of tbe 159th section of title 4, chapter 2, part 3, of R. S. 2 R. S. 253.
¶4These provisions of tbe Revised Statutes are not applicable to the courts in tbis city. By the 231st section of tbe same title, it is provided tbat tbis title shall not be considered as applicable to the courts in tbe city of New York. I know of no provision of law wbicb at any time since has made them applicable, and tbe counsel for the plaintiff has not referred to .any'as furnishing *206any authority upon which such a ruling, as is necessary to sustain the judgment, can be upheld.
¶5The provisions cf law, relating to executions out of the Marine Court, may be found in the 99th section of the act to reduce the laws relating to the city of New York, &c. (2 R. L. [1813], p. 370), made applicable to the Marine Court by section 135 of the same act. These sections provide a penalty against the officer for not levying within five clays after receiving the execution, or in fifteen days after levy, for not paying into the court the damages and costs so levied, to the amount of such execution. No provision is made in this statute of any penalty for not returning the execution as in the justice’s court statute before referred to.
¶6.^is the complaint in this case avers no other default, on the part of the defendant, than not returning the execution, and claims to recover only for the penalty imposed under the provisions of the Revised Statutes (which do not apply to the Marino Court), I do not see how the judgment can be sustained.
¶7Even if we were to disregard the pleadings, we could not sustain the judgment upon the evidence. There is no proof of any default on the part of the officer, except for not returning the process. It does not appear that he did not levy, nor that he ever received any money which he ought to have paid over. ‘Without proof of some default, such as the statute designates, the plaintiff could not recover. The plaintiff is not without remedy against an office)’, in the Marine Court, for not returning an execution. That court may compel the return by attachment, under its present organization and powers; ox tbe plaintiff may bring an action on tbe case for not returning the execution, but, in snob a case, be does not recover tbe amount of tbe execution, but such damages as he bas sustained in consequence of tbe default of the officer. Buck v. Campbell, 15 John. R. 456. Such damages must be proven, and where, as in this case, part of the amount was paid afterwards by the officer to the plaintifí; he could not claim, as damages, the whole amount of the judgment.
¶8Judgment reversed.