2 N.Y.S. 501 | N.Y. Sup. Ct. | 1888
(after stating the facts as above.) On the facts presented on the first motion the order requiring the sheriff to make return of the execution issued on the 29th day of October, 1884, and in default thereof an attachment issue against him, was properly granted. It did not appear that Gilbert’s predecessor in office, to whom the execution was delivered, had made a levy thereunder, or taken any steps towards its execution. It was the duty of the retiring sheriff to turn over the execution to his successor, and it was also the duty of the latter to receive the same, and execute its commands-so far as it was in his power to do so. Code Civil Proe. § 182. The moving affidavit stated facts and circumstances which, if uncontradicted, would justify any court in holding that both the outgoing and incoming sheriff did all their duty as required by the said section, and that the execution came to the hand of the present sheriff, and he thus became charged with its execution. If Mr. Gilbert, the present sheriff, intended to raise an issue with the plaintiff on the material facts stated in the moving affidavits, he was unfortunate in the manner in which he disputed an averment of fact which he was called upon either to deny or explain. He meets those affidavits by a mere denial of the fact in issue, without any attempt to explain his statements made to the plaintiffs’ attorney, as set forth in his affidavit, from which it might he fairly inferred that the execution was delivered to him by his predecessor, and that he had received the same for the purpose of obeying its commands. We fail to discover any error in granting the first order. The motion for a. re-