6 N.Y.S. 888 | N.Y. Sup. Ct. | 1889
There is no doubt about the liability of the sheriff for damages occasioned by his negligence in the execution of process, (Ransom v. Halcott, 18 Barb. 56; Hoffman v. Conner, 13 Hun, 541; Code, § 102;) but it is claimed here that it is not a part of the duty of the sheriff to file the notice required by section 649 of the Code, and that if he agreed to file it, that would only be an individual matter, and would not support an action against him as sheriff. This seems to be the main proposition urged on defendant’s behalf. By section 644 of the Code the obligation is on the sheriff to immediately execute the Warrant, by levying on so much of the personal and real property of the defendant, within his county and not exempt, as will satisfy the plaintiff’s demand, with the costs and expenses. Section 649 prescribes how a levy must be made on real estate, and the filing of the notice is an essential part of it. It cannot be completed without it. The filing is therefore within the direct line of the official duty of the sheriff. The fact that the attorney must sign the notice does not make it the duty of the attorney to make or complete the levy. The attorney by signing does his part towards enabling the sheriff to perform his duty. Under the old Code, the filing of this notice was not required, but a notice of pendencj could be filed. Code Proc. § 132. That would effectuate a lien, and this could be attended to by the attorney. Under the present Code, the provision as to notice of pendency does not apply to attachments, but the notice in question takes its place. Section 1670, and Throop’s note. In some respects this notice is the act of both the sheriff and the attorney. Assuming that either had a right to file it when properly prepared and executed, the sheriff, by undertaking with the attorney to do it, relieved the attorney from responsibility in the matter, and the attorney as well as the party had the right to rely on the promise of the sheriff. By such promise the act did not cease to be a part of his official duty. We think that the sheriff, in failing to file the notice before the con\eyanee by Clarke, neglected his official duty.
The finding of the referee as to the value of the property is fully sustained by the evidence. The plaintiffs, therefore, by reason of the neglect of the defendant, failed to obtain a lien, and lost the opportunity to collect the full amount of their judgment. It is suggested that the deed to Bell was invalid, and that he had knowledge of the attachment. But neither of these things are found by the referee or disclosed by the evidence. The defendant cannot, as a defense, turn the plaintiffs over to a litigation with Bell, when, if he had -done his duty, the plaintiffs would have acquired a lien, from which presumptively they could have realized the amount of their judgment. Hor is there anything in the case to support a waiver or an estoppel. The plaintiffs did not, within 10 days after the granting of the attachment, cause the alii
