¶1 The plaintiffs had a technical right of action, and were entitled to nominal damages, which they chose to waive. It was clearly in the power of the Supreme Court to permit an amendment of the return, correcting the omission as to the defendants Moore and Baker. (Barker v. Binninger, 14 N. Y., 270, 278.) The commencement of this suit was the only act of the plaintiffs on the faith of the original return; and the court, therefore, properly required the defendant to pay the costs thus far incurred, leaving it to the election of the attorney-general, to discontinue the action or to proceed in its prosecution.
¶2 ■The objection that the amended return was made after the return day, and subsequent to the commencement of the suit, was properly overruled. It was made by authority of the court, and in the discharge of an official duty; and its legal force, as evidence on the question of damages, was precisely the same as if it had been made and filed on the day the process was returnable.
¶3 The proof is clear that neither of the defendants had any interest in the personal property seized by the sheriff, and he was, therefore, right in relinquishing the levy. He was under no obligation to sell the real estate owned by Wright, as it was incumbered to an amount greatly exceeding its value. (Champenois v. White, 1 Wend., 92.)
¶4*485 There was no neglect or wrong on the part of the defendant resulting in actual injury to the plaintiffs, and the direction of a verdict in his favor was right, as "nominal damages were waived.
¶5 The judgment should he affirmed.
¶6 All the judges concurring,
¶7 Judgment affirmed.