121 N.Y.S. 522 | N.Y. App. Div. | 1910
This is an action in replevin by the alleged owner of goods, against a city marshal, who had levied on the goods-under an execution. The plaintiff’s first judgment was reversed by this court (129 App. Div. 561), and his second judgment also (133 id. 274). We cannot see that the plaintiff’s case, upon this appeal justifies a disturbance of this judgment, which is for the defendant. The only feature in the plaintiff’s case that is entirely new is the introduction of an assignment of the judgment upon which the execution was issued, made a year after this levy, to a third party, who is riot a. party to this action and who is legally a stranger to the parties thereto.
We think that the defendant was entitled to the increased costs afforded by .section 333 of the Municipal Court Act. The statute zdoes not afford such costs to State officers, but to any public officer appointed or elected under the authority of the State, andi a city ■ marshal is appointed under authority of the State, expressed in a statute thereof. (Greater N. Y. Charter, § 1424 et seq.) In Jones v. Gray (13 Wend. 280) it was held that a constable was entitled to double costs under a provision of the Revised Statutes similar to that now under consideration (2 R. S. [ed. of 1836] 512) under the
The judgment is modified by inserting an alternative provision for a return of the goods, and with respect to the costs as indicated, and as so modified it is affirmed, without costs.
Jbnks, Burr, Thomas, High and Carr, JJ., concurred.
Judgment of' the Municipal Court modified- by inserting an alternative provision for a return of the goods, and with respect to the costs as indicated, and as so modified affirmed, without costs.