48 N.Y.S. 1002 | N.Y. App. Div. | 1897
This is an appeal from a judgment entered on a verdict in favor of the plaintiff in an action originally brought against John J. Gorman (who was sheriff of the city and county of New York) for damages claimed to have been sustained by the plaintiff by reason of certain matters set forth in the complaint, and also from an order denying the defendant’s motion for a new trial. The action as it was first framed was against Mr. Gorman, but he died before the time to answer expired, and the present .defendant, as sole executrix of his last will and testament, was substituted as defendant in his place. In the complaint it is alleged that in an action brought by the plaintiff against one Salvador Parnella to recover damages for personal injuries, she procured an order of arrest, and that the sheriff (Gorman) was directed in and by such order to take the said Parnella into custody and hold him to bail in a sum specified in said order; that in pursuance of such order, Mr. Gorman, as sheriff, did arrest Parnella, and subsequently released him upon an undertaking, a copy of which was served
The answer of the defendant puts in issue certain formal matters, not necessary to be referred to, and sets up affirmatively that Mr. Gorman, the sheriff, duly served a written notice upon the attorney for the plaintiff in the action against Parnella, to the effect that the sureties on the undertaking above referred to would justify before one of the judges of the Court of Common Pleas on March 17,1893, at ten-thirty a. m. ; that on that day and at that hour the sureties named in the undertaking appeared at the time and place specified, and that the undertaking was duly approved and allowed by one of the judges of the Court of Common Pleas. The substantial defense made by the defendant, therefore, is, that the sheriff was exonerated from all liability by reason of the approval of the undertaking, and if that approval were properly made, the exemption of the sheriff would be complete — but whether it was properly made depended upon disputed facts which necessarily it was for the jury to decide. There is no evidence to show that the sureties attended at the time and place named in the notice of justification, hut there does'appear in the record a memorandum, dated March 17, 1893, signed with the initials of Judge Giegerich and indorsed on the undertaking as
But it was testified to on the part of the plaintiff that her attorney did attend at the time and place mentioned in the notice of justification and remained" there from half-past ten on the morning of the 17tli of March, 1898, until a few minutes after eleven o’clock of the same day; that during that time he had the defendant and the defendant’s attorney and the sheriff of the city and county of New York called, and that a few minutes after eleven o’clock he presented to Judge Pryor, who, he states, was sitting in Chambers, the notice of justification, and Judge Pryor made thereon the following indorsement: “ The attorneys for the defendant, and defendant in within-entitled action and the sheriff of the city and county of New York, John J. Gorman, having been twice called and making no response, and the plaintiff’s attorney having remained in court for thirty minutes in obedience to within notice, default is hereby noted. Dated March 17th, 1893, R. A. P.”
The attorney for the plaintiff testified that during all the time between half-past ten and eleven o’clock on the day mentioned, Judge Pryor ivas sitting in Chambers of the Court of Common Pleas, which was the place at which the notice of justification Avas made returnable. The attorney for the defendant SAVore that Judge Pryor Avas not holding the court during that half hour, but that, on the contrary, Judge Giegerich Avas, and that he, the sheriff’s attorney, was in court during the whole of that time, and that at the expiration of the half hour he.caused the indorsement to be made by Judge Giegerich which has been above quoted.
There was a clear issue of fact between these two witnesses, and that was left to the jury for their determination by the judge presiding at the trial of this cause. The jury found in favor of the plaintiff on that issue, and the verdict should not be disturbed unless there Avas such a clear preponderance of evidence as to show that it must be set aside. It is claimed on the part of the defendant that there is such a preponderance, and that it is shown by certain entries contained in the minutes of the Special Term at Chambers of the Court of Common Pleas held on the 17th of March, 1893. On the trial of this action certain memoranda Avere read from those minutes by the counsel for the defendant, but the clerk Avho kept them
In this situation of the case it is unnecessary .to consider other questions discussed on the appeal, and the judgment and order appealed from should be affirmed, with costs.
Van Brunt, P. J., Barrett, Rumsey and Williams,, JJ., concurred.
Judgment and order affirmed, with costs.