65 N.Y.S. 382 | N.Y. App. Div. | 1900
This is an action to recover damages for a failure on the part of a marshal of the city of Hew York to make a true return to an execution issued out of the Municipal' Court of that city. There is no substantial controversy as to the facts. The execution was duly issued and delivered to the .defendant on the 5th day of February, 1900. The judgment being in favor of a female for services per
Counsel for the respondent urged at the trial and upon this appeal that, under the provisions of section 549 of the Code of Civil Procedure, the plaintiff having alleged fraud, it was necessary to prove the same in order to maintain the action, but we are of opinion that this is a mistaken view, of the provisions of the Code. This section of the Code provides for the arrest of a defendant in an action where it is brought for certain causes, and it provides at the close of the 2d and 4th subdivisions that “ where such allegation is made the plaintiff cannot recover unless he proves the same on the trial of the action ; and a judgment for the defendant is not a bar to the new action to recover the money or chattel.” We conceive that this is intended merely as a condition precedent to the right to arrest the defendant and that it has nothing to do -with a cause of action where the allegations of fraud are unnecessary, as in the case at bar. Commenting upon this clause of the section, which was added by amendment in 1886, Stover’s Annotated Code of Civil Procedure (p. 546) says : “ The effect of this change is to require the matters of fact,
There is. no doubt that the defendant failed to make a return within twenty days of the time of the issuing of the execution against the property of the judgment creditor. Section 102 of the Code of Civil Procedure provides that “ A sheriff, or other officer, to whom a mandate is directed and delivered, must execute the same according to the command thereof, and make return thereon of his proceedings under his hand.* For a violation of this provision he is liable to the party aggrieved for the damages sustained by him,” etc. The only question here involved is, did the renewal of the execution made by the clerk of the court on Sunday, February 25, 1900, relieve the defendant of the duty of making a return on the execution within the limit of time named in the execution ? Section 1402 of the Consolidation Act (Chap. 410, Laws of 1882) provides that- “ An execution may, at the request of the plaintiff, be renewed before the expiration of the twenty days by the word ‘ renewal’ being written thereon, with the date thereof, subscribed by the clerk of the court or his assistant.” The courts have long held that the party in whose favor process issues may give such instructions to the sheriff as will not only excuse him from his general duty, but bind
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.