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21 N.Y. 481

Swezey v. . Lott

New York Court of Appeals

Decided June 5, 1860

New York Court of Appeals · decided 1860-06-05

<p>Appeal from the Supreme Court. The action was commenced in the City Court of Brooklyn against the late sheriff of Kings county, for not returning an execution which had been issued to him on a judgment for $161.23, in favor of the plaintiff against one Jenkins. The defendant levied upon sufficient property to satisfy the execution, but it was claimed by Mary Turner under an alleged sale to her by Jenkins, the judgment debtor. Upon this, the plaintiff executed to the defendant a bond of indemnity, in the penalty of $500, conditioned to indemnify and save him harmless from all actions, costs, damages, expenses, &c., in consequence of levying upon and selling the property. Mrs. Turner brought an action against the defendant, in the nature of replevin, and procured the property to be delivered to her; she executing to the coroner an undertaking with sureties, as required by the Code. The defendant excepted to the sureties, upon which others were added, who justified. The suit of Mary Turner resulted in a verdict and judgment for the defendant. The jury assessed the value of the property at $500, and the defendant’s costs were adjusted at $136.82. The judgment was for a return of the property and for the costs. The plaintiff’s attorney in'the original judgment had notice of the replevin suit, and repeatedly consulted with the attorney employed by the defendant in that suit, and advised with him as to excepting to the sureties and as to the evidence to be given on the trial. The defendant'issued an execution against Mary Turner in the replevin suit, which was returned by the coroner to the effect that he could not find the property adjudged to be returned, and that Mary Turner had not any goods, &c., whereof he could make the moneys, &c. The judgment was perfected October 27, 1854, and the return to the execution was filed on the 20th December thereafter. The present suit was commenced in February, 1856. It did not appear that any action had been commenced on the undertaking. The defendant’s counsel desired to have the jury instructed, that the suit of Mary Turner was a sufficient excuse for not .returning the execution, and that the defendant was under no obligation to prosecute the undertaking, and that the bond of indemnity rendered the parties to it liable to the defendant for the costs and expenses of the replevin suit, and these he sought to recover by way of counterclaim—that claim having been set up in the answer. The City Court declined to give these instructions, but, on the contrary, charged, the jury that, as the defendant had levied on ■sufficient property to satisfy the execution, it was for him to show a sufficient excuse for not having returned it; that the .return of the execution against Mary Turner unsatisfied did not, of itself, furnish such an excuse, inasmuch as the defend- , ant had failed to show what, if anything, he had done towards enforcing the undertaking which was an equivalent for the property levied on. The defendant’s counsel excepted to the refusal to charge, and to the charge as given. Verdict for the plaintiff, for the amount of the unpaid judgment, with interest. Upon an appeal to the Supreme Court, the judgment of the City Court was reversed, and a new trial awarded. The plaintiff appealed here, giving the stipulation required by the Code.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1860-06-05

How this case has been cited

Cited by 9 later decisions — most recently August 1906

9 state decisions

4018601870188018901900decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Denlo, J.

¶1 The Supreme Court was of opinion that, as the bond of indemnity which the plaintiff had given to the defendant, as' sheriff did not extend to an action on the undertaking, • and would not have afforded an indemnity against costs in such an action, the defendant was justified in omitting to do anything further after the return of the execution against Mary Turner unsatisfied. In this, I think, the court fell into an error. The bond was given in consequence of the claim of Mary Turner that the property levied on belonged to her. By executing' the bond, the plaintiffs assumed the whole risk which the sheriff would incur in consequence of that claim, and the defendant then proceeded to execute the Ji. fa. The result of the replevin suit showed conclusively that her claim was. unfounded, and that the property really belonged to the judgment debtor.. The undertaking given by the plaintiff in the replevin had then become the equivalent for the property; and though, in form, it ran to the coroner, the defendant was entitled to maintain an action upon it, and could claim to have it assigned to him. *484 (2 R. S., 533, § 64; Acker v. Finn, 5 Hill, 293.) I do not find any provision of law which would entitle the plaintiffs, who had no .property,- general or special, in the goods, to an assignment óf the undertaking. By an arrangement between them and the defendant; they might, no doubt, have taken upon themselves the burden of prosecuting the undertaking, and it. would not have been unreasonable in them to have done so. But; in point of law,- the further duty of pursuing the remedy oh the undertaking belonged to the defendant, ás sheriff, and this duty he neglected for more than a year after the return ' of the execution against Mary Turnen There is nothing in the case to show that the sureties were not abundantly responsible; or that the money could not have been collected, if the defendant had enforced the undertaking.

¶2 It seems that, at common law, an action on the case would not lie against a sheriff for an omission of duty in the execution of process of this kind; but the statute has given an action to the creditor against him for not returning the execution, and the settled doctrine of the courts is, that where it has not been returned, he is, prima facie, liable for the debt, but may mitigate' the damages by showing that the defendant had no property of which the judgment could be levied. Where, as in this Case; there was sufficient property, and he has not made the money nor returned the execution, nor shown any sufficient feasoti Why he has not dbne so, he is chargeable with the debt. (Bank of Rome v. Curtis, 1 Hill, 275; Pardee v. Robertson, 6 Id., 550; Ledyard v. Jones, 4 Sandf. S. C. R., 67; S. C., 3 Seld., 550.) It has been urged that it might happen that an fiction by the defendant against the sureties wduld be fruitless, as they may have become insolvent, or may have justified frfitidulently, and that the sheriff might thereby incur the expense of an action for which he would have no indemnity " This might, no doubt, 'so turn out; but it is one of the burdens of the office which the defendant assumed, and for which die" can only be compensated by the other advantages which the office confers. The duty of prosécutihg the undertaking to judgment'fil'd execution was fis obligatory as the levying upon *485 the defendant’s property in the first instance. Upon the proof in this case there was nothing to raise a doubt as to the result of such, a prosecution, nor any reason for calling upon the plaintiffs to furnish an indemnity against any possible loss which might be sustained.

¶3 There was no ground upon which the counterclaim could be allowed. Upon the comprehensive -terms of the bond, it is true that the obligors might be liable for the expenses of the suit, though the judgment was against Mrs. Turner; but until the remedy on the undertaking shall be shown to be fruitless, it cannot be said that the defendant has suffered any loss or damage in consequence of her claim to the property or her action for its recovery.

¶4 I am in favor of reversing the judgment of the Supreme Court, and affirming that of the City Court.

¶5 All the judges concurring,

¶6 Judgment accordingly.

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