
    Charles H. Smith, Appellant, v. Frank W. Geraty, Respondent.
    (Supreme Court, Appellate Term,
    November, 1908.)
    Municipal Courts — Nature and organization — Officers — Marshal — Liabilities — For failure to return execution.
    In an action by a judgment creditor against a city marshal to recover the amount of the plaintiff’s judgment, recovered in the Municipal Court of the city of New York, where it appears that an execution upon the judgment was duly issued to the marshal and that no return thereof was made, the defendant is prima facie • liable for . the amount of the judgment; and he is not relieved therefrom by merely showing that he collected nothing upon the execution, in the absence of proof that the- amount of the execution was uncollectible or that he made an attempt to collect something.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, third district, borough of Manhattan.
    Louis A. Brown, for appellant.
    Hastings & Gleason (Charles M. MacLaren, of counsel), for respondent.
   MacLean, J.

An execution, issued out of the Municipal

Court, was delivered to the defendant, a city marshal, whereof, according to the return of the clerk of the court, no return was made or filed. Prima facie the defendant was liable for the amount of the judgment, and could only relieve himself by showing that the judgment creditor was not aggrieved. He admitted receiving the execution, but asserted, as he was led, that he had returned it by mail, which he, residing in the place where the clerk’s office is situated, might not do. He did not show that he made a levy, or that the judgment debtor had no property upon which a levy might be made; and so the judgment in his favor may not stand.

The doctrine hereof is not in accord with some remarks in a case cited upon the respondent’s brief and-wherein an interpretation was put upon a section of a statute of 1857 which has been adopted into the Municipal Court Act; nor is the law laid down in that case in accord with the common course of decisions in the courts of last resort. Ledyard v. Jones, 7 N. Y. 550. Moreover, in the'case referred to, the marshal had filed a return.

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

Gildersleeve, J., concurs.

Seabury, J. (concurring).

The facts of this case are stated in the opinion rendered upon a former appeal. 58 Misc. Rep. 556. Upon the first trial and again on the second trial, it was shown that the marshal did not file his return of execution as required by law. Upon the last trial, which we are now called upon to review, it was proved that the defendant did not collect anything upon the execution. Upon this evidence the court below gave judgment for the defendant. There was no proper proof before the court to show that the defendant even attempted to collect the amount of the execution. In the absence of such proof, the plaintiff was prima facie entitled to recover the amount for which the execution was issued. If the defendant had proved an attempt to collect the amount of the execution and that it was uncollectible, a different situation would be presented-in relation to which the rule stated in Curry v. Farley, 8 Daly, 228, would seem to be applicable. But a marshal charged with the duty of attempting to collect an execution cannot, upon his failure to file a return as required by law, avoid liability merely by his statement that he collected nothing. For all that appears in the evidence he collected nothing because he made no attempt to collect anything.

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

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