Newland v. Baker

21 Wend. 264 | N.Y. Sup. Ct. | 1839

By the Court,

Bronson, J.

The plea gives a sufficient answer to the action. The plaintiff complains that Baker as constable collected and received the amount of the execution against Wright, and that he wrongfully withholds the money. The answer is, that although the constable took and sold certain property as the property of Wright, and thus collected the amount of the execution, yet a third person, to whom the property belonged, has sued the constable for taking it, and recovered a sum exceeding the amount which had been levied. The constable has got no money in his hands belonging to the plaintiff. Although in form the execution and the judgment were satisfied by the sale, yet, in legal effect, there has been no satisfaction; the judgment against Wright is still in full force, and the plaintiff has a remedy in that direction. It would work great injustice to allow the plaintiff to maintain this action, when, in effect, the constable has received nothing.

If the recovery against the constable was by.collusion' between him and Mrs. Gaylór, as is hinted in the brief of the plaintiff’s counsel, that matter should have been set up by way of replication. The plea shows an adverse recovery, against the united effort of Baker and the plaintiff Newland. And besides, it is averred that the property did in fact belong to Mrs. Gaylor.

The replication is, that before the levy, there was an agreement to indemnify the constable. If the plaintiff should succeed upon this ground, the constable might immediately turn round and recover back the money in an action" on the plaintiff’s covenant to indemnify. This circuity of action ought, if possible, to be avoided. Clark v. Bush, 3 Cowen, 151. Smith v. Mapleback, 1 T. R. 441, per Buller, J. But it -is unnecessary to rest the decision upon that ground. The replication does not go far enough.- It only shows that the. constable will have a remedy over if the plaintiff succeeds. It does not overturn the plea, which shows that the constable has not got the money, and is not in default. If the plaintiff had paid Mrs. Gaylor’s judgment, had performed his contract to indemnify the officer, this action might perhaps have been maintained.

The fact that an action has been brought against the plaintiff on the covenant of indemnity, cannot affect this question. In that action the question will be, how much has the constable been damnified 1 If he has paid Mrs. Gaylor’s judgment and other expenses, he cannot recover the whole amount, but only such balance as may remain after deducting the money levied on the execution. Although that money cannot be recovered in this action, it will go. to the question of damages in the suit upon the plaintiffs covenant.

Judgment for defendants.