24 Barb. 278 | N.Y. Sup. Ct. | 1857
The action against a sheriff for not executing and returning an execution delivered to him, according to its command, is founded on the statute. (2 R. S. 440, § 77.) The statute makes the sheriff liable to the aggrieved party, for the damages sustained by him, but the form of the remedy, and the facts necessary to be stated in the declaration or proved on the trial, are not set forth. In the ease of Stevens and others v. Rowe, (3 Denio, 327,) the supreme court held that an action on the case was the appropriate remedy, and that the particular grounds of damages on which the plaintiff seeks to recover, should- be stated in the declaration, or the plaintiff should not be permitted to prove them on the trial. In the case of Ledyard v. Jones, decided in the court of appeals, in 1852, (3 Selden, 550,) that court declined to sanction the doctrine which made it necessary for a plaintiff in his declaration against a sheriff for not returning an execution according to its requirements, to state the particular grounds on which his claim to damages is founded; and also refused to adopt the rule which allowed a sheriff, in such a case, to mitigate the damages claimed by the plaintiff, by showing that the defendant in the execution still has property out of which it may be collected; and decided that in such an action, prima facie, the measure of the plaintiff’s damage is the amount required to be raised by the
The complaint of the plaintiff against the defendant for not returning the execution within 60 days after its receipt, is met by an allegation on the part of the defendant that after his receipt and before the return day of the execution, the plaintiff’s attorneys directed him. to do certain things in reference to collecting the execution, which they knew could not be performed within its life, and promised that for the delay occasioned by obeying such instructions they would not hold him responsible. The proof on this point shows that on the 18th of December, 1854, the plaintiff’s attorneys wrote to the defendant, as follows: “ Dear Sir, Will you probably be able to collect the amount of John Humphrey’s execution agt. Empire State Mutual Insurance Company, by the time the execution runs out? Mr. Humphrey is owing some money, and he wants to know, so that he need not be disappointed in relation to Ms
The 60 days in which the sheriff was required to return the execution, by the indorsement upon it, expired on the 2d day of January, 1855, yet the plaintiff’s attorneys, within the life of the execution, and after they had been advised by the defendant, that it was not probable that he could get the money
Marvin, Bowen and Mullett, Justices.]