
    Louise S. Veltin, Appellant, v. Jacob Cash, Respondent.
    Supreme Court, Appellate Term, First Department,
    June 22, 1925.
    Judgments — execution — action against marshal under Municipal Court Code, § 141, based on failure to return execution within twenty days — defendant, after return of execution, collected from judgment debtor — error to dismiss complaint.
    It was error to dismiss the complaint in this action brought under section 141 of the Municipal Court Code, to recover from the defendant, a marshal, the amount of an execution on the ground that he failed to return the execution within twenty days after delivery thereof, since it appears that after the defendant returned the execution he collected from the judgment debtor, pursuant to a prior demand, enough money to pay his fees.
    Appeal by plaintiff from a judgment of the Municipal Court, Borough of Manhattan, Fifth District, rendered in favor of defendant, after trial by the court with a jury.
    
      Haskell, Lyon & Block [William S. Haskell of counsel], for the appellant.
    
      Jules H. Baer, for the respondent.
   Per Curiam:

Section 141 of the Municipal Court Code provides that a marshal who fails to return an execution within twenty days is liable to the execution creditor for the amount of the execution. The defendant marshal failed to make such return. He was, therefore, prima facie liable for the amount of the execution and could mitigate the damages only by showing that plaintiff was not aggrieved. (Smith v. Geraty, 61 Misc. 101.) It further appears that after the defendant returned the execution he collected twenty-five dollars from the judgment debtor pursuant to a demand that he had previously made upon him to pay the marshal’s costs. He had no right to retain this collection arbitrarily as the fees to which he would have been entitled if he had collected the judgment. It was, therefore, error to dismiss the complaint.

Judgment reversed and new trial ordered, with thirty dollars costs to the appellant to abide the event.

All concur; present, Bijur, Mullan and Proskauer, JJ.  