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43 N.Y. 514

Cumming v. . Brown

New York Court of Appeals

Decided January 24, 1871

New York Court of Appeals · decided 1871-01-24

Appeal by the defendant from a judgment of the late General Term of the Supreme Court, in the sixth judicial district, affirming an affirmance by the Delaware County Court of a judgment for the plaintiffs in justices’ court, in the town of Walton, in that county. The defendant obtained leave of the General Term to bring this appeal.

Key passage — most relied on by later courts

““The taking by a deputy sheriff, by virtue o£ an attachment, of property supposed to be the property of the debtor, and the sale of that property under execution to satisfy the judgment in the action, are official acts; and if it turns out that the property did not belong to the debtor, and that the deputy sheriff has thereby incurred a liability to the true owner, it is a liability incurred by the doing of an official act"”

quoted by 1 later decision, including Murphy v. Callan

Good law ✅— No negative treatment on recordhow we know

Decided 1871-01-24

How this case has been cited

Cited by 19 later decisions (1 by the Supreme Court) — most recently June 1980

4 federal appellate · 12 state decisions

60187118801890190019101920193019401950196019701980decided

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.

View the full empirical analysis of this case →

Rapallo, J.

¶1 A deputy sheriff is entitled, in respect to liabilities incurred by the doing of an act in his official capacity, to the protection of the short statute of limitations contained in subdivision 1 of section 92 of the Code.

¶2 He is a public officer required by statute to take an oath of office (1 Stat. at Large, 352, § 74), and comes under the general denomination of “ a sheriff,” and can claim the benefit of statutes regulating actions against sheriffs.

¶3 The taking by a deputy sheriff, by virtue of an attachment, of property supposed to be the property of the debtor, and the sale of that property under execution, to satisfy the judgment in the action, are official acts, and if it turns out that *516 tiie property did not belong to the debtor, and that the deputy sheriff has thereby incurred a liability to' the true owner, it is a liability incurred by the doing of an official act.

¶4 In the case of a sheriff, it was formerly held by the Supreme Court, that such an act being a trespass it was not official, and that in such a case the sheriff could not avail himself of the short statute of limitations. (19 Wend., 283; 4 Hill, 572.) That the statute only covered cases in which the party injured could resort to the official bond of the officer, and that the sureties would not be liable for a trespass committed by him. But it was afterward held by this court in The People v. Schuyler (4 Comst., 173), that such an act was official, and that the sheriff’s sureties were liable therefor. (See also 18 Barb., 89.)

¶5 The act being official when done by the sheriff, it must be equally so when done by a deputy sheriff. In both cases the officer is assuming to perform the duties of his office, and if in point of fact he makes a mistake, and seizes the property of the wrong person, there is no reason why that circumstance should deprive the act of its official character in the case of a deputy sheriff, if it does not have that effect in the case of a sheriff.

¶6 The judgment should be reversed, with costs.

¶7 All the judges concurring, judgment reversed.

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