43 Barb. 98 | N.Y. Sup. Ct. | 1864
Lead Opinion
It is too late at the trial to object that the complaint and summons vary; that the summons was under the wrong subdivision of the 129th section of the code of procedure to justify the present complaint under it. That objection should have been presented by motion, in order that an amendment might have been made on just terms. If necessary to sustain the judgment, it would be now amended, so as to conform to the facts proved.
The facts on which the recovery is based are wholly undisputed. The deputy of the sheriff of the city and county of ¡New York had, under and by virtue of executions issued and delivered to such sheriff, sold on the 13th of May, 1858, property of the defendants in the executions, to the amount of $516.95. This money he has kept, and not paid either to the sheriff or to any person who was entitled thereto. The defendant Perry is the surety of the deputy, and he, with the deputy and his co-surety, is sued by the sheriff upon the bond given by the deputy, conditioned that he would well and truly execute the office of deputy sheriff.
The defendants claim, first, that they are not liable because the sheriff was not sued to recover this sum until after three years from the time the money was made by the deputy, and that by section 92 of the code the action was barred by lapse
The law declares the judgment from undisputed facts, There was nothing for a jury to find.
The judgment should be affirmed, with costs.
•Leonard, J. concurred.
Dissenting Opinion
I dissent. I am inclined to think that the evidence offered by the defendant, to show that Kilbreth had no interest in the money for which the furniture was sold, and was not entitled to receive any from Willet, and that Willet paid the money in his own wrong, was improperly ruled out. Moreover, after a careful examination of the case, I fail to see the ground upon which the judge was justified in directing a verdict for the plaintiff. Stewart swore that he never received the money from the auctioneer. The auctioneer swore that he had paid Stewart a part, without saying, or being asked, how much. How then could a verdict be directed on the ground that Stewart had received but had not paid over the money ?
The recovery of the judgment against the sheriff, and the payment of it by the sheriff, is a mystery to me, and needs more explanation than the case furnishes.
Judgment affirmed.
Leonard, Sutherland and Geo. G. Barnard, Justices.]
