
    AUGUSTUS C. BECHSTEIN and WILLIAM P. ROSS, Appellants, v. CHARLES A. SAMMIS, Sheriff, etc., Respondent.
    
      Action against sheriff, for failure to return execution — return of, nulla Iona after commencement of action — effect of.
    
    After the commencement of an action, brought against the sheriff for a failure to return an execution within sixty days, he returned the same indorsed nulla tona. Upon the trial the plaintiff proved the issuing of the execution, and its return and indorsement after the commencement of the action. Held,
    
    That as the return was made by a public officer of an official act he was bound by law to make, it was evidence in favor of the officer making it.
    That its admissibility was not affected by the fact that it was made after the commencement of the action.
    That as the plaintiffs did not contradict the return, he was entitled to recover only nominal damages.
    Appeal from a judgment for costs in favor of the defendant, entered upon the report of a referee.
    
      Eckowrd J. Cramer, for the appellants.
    
      John, J. Armst/rong, for the respondent.
   Barnard, P. J.:

The plaintiffs, on the 28th September, 1875, recovered a verdict against Henry Hodfield and John W. Hodfield for $3,071.04. On the next day an execution was delivered to the sheriff of Queens county, where a transcript of the judgment had been filed. The sheriff did not return the execution within the sixty days. The plaintiffs brought this action against him for this neglect. After the action was brought, and before its trial, the sheriff returned the execution to the clerk’s office with his return of nulla Iona indorsed thereon. Upon the trial the plaintiff proved the judgment, the issuing and delivery to the sheriff of the execution, and produced and read in evidence a certified copy of the execution so returned, with the indorsement thereon. The plaintiff offered no other evidence, and the.referee gave judgment for the plaintiff for six cents. The plaintiff appeals, and the only question presented is as to the effect of tbe sheriff’s return. Tbe return was made by a pubhc officer of an official act be was bound by law to make. Sucb return is evidence in favor of tbe officer making it. (Browning v. Hanford, 5 Den., 586; Board of Water Commissioners v. Lansing, 45 N. Y., 19; Russel v. Gray, 11 Barb., 541; Henderson v. Cairns, 14 Barb., 15.) It is evidence, notwithstanding it was made after tbe commencement of tbe action. (Glover v. Whittenhall, 2 Den., 633 ; Birkbeck v. Stafford, 14 Abbot Pr. Rep., 285.) When tbe plaintiff rested be bad proven a cause of action against tbe sheriff, and that be bad suffered only nominal damages.

It was competent for him to have contradicted tbe return, which is only prima facie evidence of its truth. Not having done so, tbe judgment is right, and should be affirmed with costs.

Gilbert and Dtkman, JJ., concurred.

Judgment affirmed, with costs.  