
    CHARLES W. WATSON, Plaintiff and Respondent, v. MATTHEW T. BRENNAN, Sheriff, &c., Defendant and Appellant.
    L—SHERIFF’S LAW.
    1. False return.
    1. Duty of sheriff in respect of executions.
    
    He is bound to use all reasonable endeavors to execute the process of the law in the most effectual manner.
    
    3. Custody of the law.
    
    The fact that property is in the custody of the law does not absolve the sheriff from above duty, a. He is nevertheless bound to use such reasonable care and diligence as will, if the goods or any part thereof are under the fact and the law subject to the execution held by him at the time of its issue, or if they or their proceeds or any part thereof subsequently during the life of the execution become subject thereto, enable him or the plaintiff in the execution so to subject the same.
    1. Omitting to use suoh ca/re and ditigenee. a. If the plaintiff thereby loses the benefit of his execution, the sheriff will be liable in an action for g false return.
    
    3. Defense to action for false return.
    1. Bankruptcy proceedings. Attacking judgment. . a. It does not lie with the sheriff to urge that the plaintiff’s judgment is invalid under the bankrupt act,'and that therefore no act done under or by color of it could inure to plaintiff's benefit.
    
    H.—APPLICATION OF ABOVE PRINCIPLES.
    Thus where the defendant, being an incumbent sheriff, held three executions against the same judgment debtor (the plaintiff’s being the junior of the three), and the preceding sheriff under a previous attachment against the same judgment debtor, had attached and held in custody goods of sufficient value to satisfy the attachment and all the executions, and refused to allow his successor to seize and levy on them under bis executions, but allowed a portion to be removed from his custody in a concealed and surreptitious manner, by persons other than his successor, of which the deputy holding the executions had notice. And afterwards bankruptcy proceedings were commenced against the judgment-debtor in which the attachment was declared void under the-bankrupt act, and an order made on notice to the incumbent sheriff, authorizing him to sell the property which had not been removed, and directing him to hold the proceeds, under which order he did sell and afterwards applied the proceeds on the two-executions prior to the plaintiff’s, leaving a balance unpaid on one of them, the -money so applied, however, as well as the proceeds of the goods removed (which were sold under an order in-the bankruptcy proceedings) were subsequently, under an order in those proceedings, paid over to the assignee in bankruptcy, and the plaintiff’s execution was thereafter returned nulla, bond;
    
    HELD,
    1. That the deputy holding the plaintiff’s execution owed to him the duty
    
    of seeking from the watchman who gave the information of the-removal, what information and knowledge he had about it, of making inquiries for persons or carts likely to remove the goods, of asking to look at the warrant of attachment, of applying to-the former sheriff himself in relation to the removal, of calling on him to release from the levy of the attachment all goods-beyond what was necessary to satisfy the attachment and sheriff’s-fees, of notifying the plaintiff of the excessive levy under the attachment, and of the removal, and of either making a claim under the plaintiff’s execution in the bankruptcy proceedings, or notifying the plaintiff so that he could either indemnify the sheriff or make a claim himself.
    2. That the deputy not having performed these duties
    
    the plaintiff had lost the benefit of his execution by reason of such negligent omission.
    3. That the negligence was of such, character as to entitle the-plaintiff
    
    to recover, in an action for a false return, the amount of his execution and interest thereon.
    4. That the proceedings in bankruptcy did not relieve
    
    the sheriff from the liability raised by such negligence.
    5. Attacking the judgment.
    
    It does not lie with the sheriff to raise the objection that plaintiff’s judgment was invalid under the bankrupt, law, and urge that therefore neither the property nor its proceeds could be realized under it.
    Before Monell, Ch. J., and Curtis, J.
    
      Decided February 1, 1875.
    The appeal is by the defendant from a judgment at special term. The trial was without a jury, the parties having waived a jury.
    The action was brought to recover damages against the defendant for a false return of “no property” upon an execution.
    The defenses were a general denial, prior executions in favor of another party against the same defendants, and executed upon all the property of the defendants, and further that plaintiff’s execution, and the judgment upon which it was founded, were obtained and issued to procure a preference in violation of the bankrupt law of the United States, and therefore void.
    The findings of the court were as follows:
    First.—That at the time of issuing the execution hereinafter mentioned, the defendant was the sheriff of the county of New York in the State of New York.
    Second.—That on January 31, 1871, in an action in the marine court of the city of New York, wherein this plaintiff was plaintiff, and Edward P. Sanger and Walter Scott were defendants, the plaintiff recovered a judgment duly given by said court against the said Edward P. Sanger and Walter Scott for the sum of four hundred and nine dollars and thirty-three cents damages and costs, which judgment was thereafter, to wit, on February 1, 1871, duly docketed in the office of the clerk of the city and county of New York.
    That thereafter and on said February 1, 1871, an execution against the property of the said Edward P. Sanger and Walter Scott was duly issued by the plaintiff upon said judgment, and directed and then delivered to the defendant, as sheriff of the city and county of New York, for service.
    Third.—That said execution was directed to and delivered, to this defendant, as sheriff of the said city and county of New York, for service, whereby, after containing the statement and recital of the matters required to be stated and set forth in such case, pursuant to section 289 of the Code of Procedure, and after setting forth that the whole of the judgment upon which said execution was issued, was then actually due, this defendant was, in substance, commanded to satisfy the said judgment out of the personal property of the said judgment debtors within this defendant’s county, or if sufficient personal property could not be found, then out of the real property in his county belonging to such judgment debtors on the day when the judgment was so docketed in his county, or at any time thereafter in whose hands soever the same might be, and to return the said execution within sixty days ■ after the receipt by him, as required by law.
    Fourth.—At the time of the delivery of such execution to the defendant, there was within said county personal property belonging to the said Edward P. Sanger and Walter Scott, out of which the said sheriff might have satisfied the said execution, of which property he then and there had notice.
    Fifth.—That notwithstanding the premises, and in violation of his duty as sheriff, he did not satisfy said judgment or any part thereof, but on November 28, 1871, falsely returned upon said execution to the clerk of the court of common pleas for the city and county of New York, that said Edward P. Sanger and Walter Scott had not any goods or chattels within said county whereby he could cause to be levied the amount of said judgment and execution or any part thereof.
    Sixth.—That by the said negligent and wrongful conduct of the defendant, the plaintiff sustained damages in the amount of said execution, to wit, four hundred and nine dollars and sixty-three cents and interest. That the amount of such interest to March 11, 1874, is the sum of eighty-nine dollars and fourteen -ents.
    Seventh.—That the said judgment upon which said execution was issued, was obtained by the plaintiff in a hostile suit in which the said judgment debtors denied their liability, and contested the plaintiff’s claim upon the merits.
    Eighth.—That the said judgment debtors did not procure, or suffer, nor intend to procure or suffer their property to be taken under said execution with intent to give a preference to the plaintiff, nor with intent to defeat or delay the operation of the bankrupt-act.
    And as conclusions of law fi;om the foregoing facts, the court found that the plaintiff was entitled to judgment against the defendant for the sum of four hundred and ninety-nine dollars and seven cents.
    At the defendant’s request the court found the following additional findings :
    That the defendant’s term of office as sheriff commenced on January 1, 1871, and that his immediate predecessor in office was James O’Brien.
    That on January 12, 1871, the defendant received executions, issued in due form of law, upon two judgments of the supreme court, in favor of the Tenth National Bank, against the said Edward P. Sanger and Walter Scott, for the sum of four thousand and eighty-three dollars and forty-seven cents, and five thousand and fifty-one dollars and one cent, respectively, and in due form of law, commanding the defendant to satisfy said judgments out of any property of the said Sanger & Scott in the city and county of New York.
    That the defendant gave the said O’Brien notice that he held executions against said debtors, and levied upon all of the said property, subject to the rights of said O’Brien ; and at the request of the plaintiffs in said action, the defendant on January 15, 1871, placed a man outside of said place of business, for the purpose of taking possession of said property in case the said O’Brien should for any reason release it.
    That on February 24,1871, a petition in bankruptcy was duly filed in the United States district court for the southern district of New York, against said Edward P. Sanger and Walter Scott, by certain of their creditors, under and pursuant to which petition and the proceedings thereunder the said Sanger & Scott were adjudicated bankrupt, and Bichard Warren and Edward Rowe were chosen assignees of the estate of said bankrupts, and an assignment of said estate duly executed to said assignees on April 11,1871, and on the day said petition was filed as aforesaid, the said United States district court issued its injunction restraining the defendant and said O’Brien and all other persons from disposing of or interfering with the property of said debtors, Sanger and Scott, which said injunction was served upon this defendant on the said February 24, 1871.
    That on or about March 8, 1871, the petitioning creditors filed their further petition addressed to the said United States district court, praying that said goods at No. 470 Broome street be sold at public auction as perishable, and the proceeds held subject to the order of that court; that said petition, with notice thereof, was served upon the defendant and upon James O’Brien, late sheriff as aforesaid; that said O’Brien and this defendant appeared and opposed said motion, but the said court, nevertheless, made its order modifying its injunction so as to allow this defendant to sell said property through Wilmerding, Hog net & Co., auctioneers, and hold the proceeds, after paying the expenses of sale, subject to the said injunction; and the said Wilmerding, Hoguet & Co. did sell said property, and paid to this defendant the sum of eight thousand two hundred and forty-nine dollars and twenty-five cents ; that he applied five thousand and fifty-one dollars and'one cent thereof in satisfaction of ■one of said Tenth National Bank executions, and three thousand one hundred and eighty-eight dollars and twenty-four cents, applied upon the other, and made a return of “ no goods,” as to the balance of said execution.
    At the plaintiff’s request the court found the following additional findings :
    That on January 12, 1871, two executions against the said Sanger and Scott were issued to the defendant, upon judgments in favor of the Tenth National Bank, for four thousand eight hundred and three dollars and fifty-seven cents, and five thousand and fifty-one dollars and one cent, which executions were in the hands of the defendant at the time of the issuing of the plaintiff’s execution.
    That on January 14, the deputy of the old sheriff, upon said attachment, removed from the said stock of goods more than sufficient to satisfy such attachment, with his costs and expenses, of which fact the defend ant had notice; and, nevertheless, continued in possession of the stock at the judgment debtors’ store, and forbade the defendant’s deputy to take any of the goods under his execution, and the defendant did not take possession of the same, although he had notice that the goods had been removed under the attachment.
    The justice found as above requested, omitting, “ of which fact the defendant had notice.”
    That under an order of the United States district court the said goods were sold by the sheriff, and realized upon such sale $8,249.25, of which sufficient to satisfy the execution for five thousand and fifty-one dollars and one cent in favor of the Tenth National Bank was applied thereon, and the same was returned satisfied, and the remaining three thousand one hundred and eighty-five dollars and twenty-four cents was applied upon the other execution for four thousand eight hundred and three dollars and forty-seven cents in favor of said bank, and the same was returned satisfied as to the three thousand one hundred and eighty-five dollars and twenty-four cents, and no real or personal property as to the remainder, and the defendant received his fees upon such execution.
    That the attachment for three thousand dollars in favor of Algeo having been levied i less than four months prior to the filing of the petition in bankruptcy, the same was dissolved by the adjudication thereon, and the goods removed from the store on January 14, by the deputy of the former sheriff, were surrendered to the marshal under the bankruptcy proceedings, and afterwards sold by William Topping & Co. in the bankruptcy proceedings, under an order of the United States court, and realized five thousand and forty-nine dollars and sixty-four cents over and above all expenses of sale.
    That the defendant took no action and made no. levy under the plaintiff’s execution upon said goods, though he had notice that said goods were in his county, and gave no notice to him of any of the proceedings taken by or against said defendant in the bankruptcy court in respect to the goods of the judgment debtors, Edward P. Sanger and Walter Scott, and set up no claim or lien in the proceedings in the bankruptcy court under the plaintiff ’ s execution.
    That the judgment debtors did not procure or suffer, or intend to procure or suffer their property to be taken on the execution of the plaintiff with the intent to give the plaintiff a preference in violation of the bankrupt act.
    
      There were exceptions by the defendant to each and all of the findings of the court.
    At special term the following opinion was delivered :
    
   Sedgwick, J.

The defendant became sheriff in 1871. Some time before January 1, 1871, James O’Brien, the late sheriff, through McKnight, one of his deputies, seized a stock of goods belonging to Sanger & Co., in their store in Broome-street, under an attachment against them, and remained in possession down to February 34, 1871. The attachment was in the sum of three thousand dollars.

On January 13, 1871, two executions were issued to the defendant. These were in the aggregate for nine thousand eight hundred and fifty-four dollars and forty-eight cents. On that day the defendant’s deputy, one Schmitz, went to the store in Broome-street for the purpose of levying under these executions. He was informed by or in behalf of McKnight that the latter had possession of all the goods by virtue of the attachment. The defendant’s deputy, Schmitz, did not take or attempt to take any possession or control of any goods, but made what he called an informal levy upon the surplus, if any, that might be left after satisfaction of the attachment. He asked McKnight to allow him to take possession, but McKnight refused.

On January IS, 1871, defendant’s deputy, Schmitz, put a new man, named Pearsall, on guard over the .;tore, but not in it, for the purpose of taking actual possession if the late sheriff’s deputy, McKnight,. should abandon his levy under the attachment.

On January 14, 1871, McKnight removed goods from the store of the value of five thousand and forty-nine dollars and sixty-four cents. The defendant’s deputy, Schmitz, was informed by his man Pearsall that McKnight had taken goods. He was not informed of the value of these goods, or of the place to which they had been taken. He received this information before February 24, 1871. They had been taken to a place for storage in this county. On February 1, 1871, the. plaintiff duly took out an execution against the property of E. P. Sanger & Co., for the sum of four hundred and nine dollars and thirty-three cents. This was placed, to be levied, in the hands of defendant’s deputy, Schmitz, on the same day.

Nothing occurred before February 23, 1871, to prevent the deputy, Schmitz, from doing his whole duty to the plaintiff under his execution. He was bound to use reasonable and ordinary efforts to find property on which he might levy, that would as far as possible pay the three executions referred to. Until February 1, 1871, when plaintiff’s execution was placed in his hands, the plaintiff in the prior executions could alone call him to account, but on February 1, and from that to at least February 23, the plaintiff here had a right to his diligence in endeavoring to levy sufficient under the executions in his hands, to secure the three. He knew of the goods in Broome-street. They were at least of the value of eight thousand three hundred and thirty-nine dollars and twenty-five cents. He had heard that McKnight had taken under the attachment in his hands goods from the store. This case, I think, turns upon the conduct in respect of these goods. If he used ordinary diligence and reasonable effort to discover where they had gone, the defendant is not responsible for any consequence that came from his- not having known concerning them. If the performance of his duty would have made known to him where the goods were or what they were, and if then a use of ordinary means would have enabled him to make a levy that would have secured the plaintiff’s execution, the defendant is liable to respond to the plaintiff for the levy not having been made.

If the goods, both in Broome-street and on storage, were held regularly and in compliance with. law under the attachment, the defendant’s deputy had no power to seize or take possession of them, or any part of them. The deputy holding the attachment had a right to execute the process, so as to take or keep possession of enough goods to secure the payment of three thousand dollars. Ho question was made as to the amount of fees under this attachment. Ho demand seems to have been made for them out of the property when it went into the bankruptcy court.

What did defendant’s deputy, Schmitz, do to discover the property that had been taken away from the store? He first asked deputy McKnight’s assistant where the goods had been taken to. This assistant told him to ask McKnight. McKnight was asked, but refused to tell him. He also asked one of the firm of Sanger & Co., who professed to know not, and also the present plaintiff’s attorney, who, of course, did not know.

What might he have done without extraordinary vigilance, but in the ordinary mode of getting knowledge used by sheriff’s officers? He might have asked his man Pearsall what his sources of information were, and, in this way, gone back as far as possible to the facts. He might have made ordinary inquiries for persons or carts likely to take away that large amount of goods. He might have made inquiries at places where they would likely be left during the pendency of the attachment. On receiving the answer he did from McKnight, it would have been, I think, an ordinary step for him to go to the sheriff, O’Brien himself, and to call for the exercise of authority over McKnight. He knew, or might have known, that the goods in the store, were more than sufficient levy under the attachment, and he could not, therefore, content himself with the presumption that the other goods had been taken away duly, in obedience to the commands of the attachment. That fact, in connection with an unnecessary and evident concealment by McKnight, was sufficient to apprise him that they were goods which should be applied to the execution. I think that if he had used the diligence required of him (Hinmain v. Borden, 10 Wend. 367; Tomlinson v. Rowe, Hill & D. Sup. 410), he would have learned the place where the property taken away was and what its value was.

There would then have been, to his knowledge, property of E. P. Sanger & Co. in this county of the value-of thirteen thousand three hundred and eighty-eight dollars and eighty-nine cents ($13,388 89). It is clear that deputy McKnight had no legal right to hol'd all this property under the attachment. He could lawfully hold only so much as would be sufficient to satisfy the attachment-plaintiff’s demand.

There is some reason for believing—that is, if we rely on Schmitz’s testimony—that the attachment was levied and used in the interest of E. P. Sanger & Co. to the knowledge of Algeo. The testimony is that McKnight gave up possession under the attachment as soon as the injunction in bankruptcy was served, viz. February 25, 1873. But it had not been then determined that E. P. Sanger & Co. were bankrupts. If McKnight was bona fide attempting to protect Algeo’s interest, it is most likely that possession would have been maintained until the adjudication in March. But the proof is not sufficiently strong perhaps to show that Algeo was a party to such a use of the process as to require us to decide that Deputy Schmitz should have disregarded it.

But as it was manifest to deputy Schmitz that McKnight was making an excessive levy under the attachment, his duty to the executions he held required that he should take ordinary measures to have such parts of the property as were not properly attached relieved, so that he might levy. The least he could have done was to make a specific demand of McKnight that he should release whatever was in the store that was not necessary to secure the attachment, and, in case of a non-compliance by McKnight, to have made the same demand of sheriff O’Brien. We must deem that there would have been an obedience of law by public officers when the specific request was made. And if there had not been negligence in reference to the goods taken from the store, the executions might have been levied upon them also.

There would have been enough value to have fully paid the claim, in the attachment suits and the three executions, including the present plaintiff’s.

We have left out of view that part of one of the prior executions as to which the defendant returned nulla bona. There is authority for saying that the return binds him in this action, and that he can not contradict it, for the purpose of maintaining that the prior executions would have exhausted the leviable property of E. P. Sanger & Co. before plaintiff’s execution could have been reached (Patton v. Westervelt, 2 Duer, 362). On February 24, 1871, an injunction was issued out of the bankruptcy court restraining all persons having property and goods of E. P. Sanger & Co. from parting with them. This was some time before they were declared bankrupts. As we have seen, on that day McKnight gave possession of the goods in the store to defendant’s deputy, and the latter went into possession about March 11, 1871. The marshal serving the warrant in the bankruptcy proceeding claimed a right to take these goods. The defendant’ s deputy claimed to hold them only for the benefit of the two first executions. By consent and order of the bankruptcy court these goods were sold, and the various claims transferred to the proceeds. The case does not show particularly what the sheriff claimed in respect of the goods taken away by deputy McKnight. The attachment itself was dissolved by the bankruptcy proceedings. I think there can be no doubt that the defendant made no claim whatever as against these-latter goods, in the bankruptcy court in behalf of the present plaintiff. If he had not been negligent, there would have been what is tantamount to a levy in behalf of the plaintiff’s execution—that is, there would have been a levy under that execution, or under some other, which would have inured to its benefit. Irrespective of the effect of the bankruptcy, the proof is, the plaintiff would have recovered the full amount of his execution, and therefore that he has been damaged in that amount.

I do not think that any consideration arising out of the bankruptcy proceedings mitigates the damages. What would have been the effect of the sheriff’s litigating in behalf of plaintiffs executions in the bankruptcy court, after notice to plaintiff of the proceeding, in case of an adjudication against the claim, does not call for-answer here, inasmuch as there was no such adjudication, and no such claim or notice. The defense then rests upon the suggestion that if the defendants had so-acted in behalf of the plaintiff that the latter had an interest in a levy, it would have resulted in no benefit to the plaintiff, because the bankruptcy court, in that very proceeding, adjudged that the assignee had a, right to the property free of the two prior executions founded on judgments declared to be in violation of the bankrupt act, and that the plaintiff’s judgment would have met a similar fate, or because this latter judgment was in violation of the bankrupt act. I think this is speculative. The two prior judgments might have been against the bankrupt act, and the plaintiff’s judgments might not have been. The late decisions of' the supreme court would uphold it. It certainly would not have been disregarded, if the assignees in bankruptcy had not seen fit to question it. It was valid, except as they might take advantage of any defect, if there were one. It is not the sheriff who can make this claim for the assignees. He owes fidelity to the process issued in behalf of the plaintiff. The assignee might never have made an attempt to'mrpeach that process.

In substance, under sections 35 and 39 of the bankrupt act, the assignee has a chose in action by which “he may recover the property or the value of it from the person so receiving.it or so to be benefited,” or “ may recover back the money or other property so paid, conveyed, sold, assigned, or transferred contrary to this act; provided the person receiving such payment or conveyance had reasonable cause to believe that a fraud on this act was intended and that the debtor was insolvent.” The defendant has no right to diminish the plaintiff’s claim against him, by showing (if he could) that facts exist which would have put it in the assignee’s power to take the goods levied upon, or recover their value if the proceeds had been paid to the plaintiff. Section 35 says that the mode of getting the preference is void. That is the equivalent of language used in our own statutes against fraudulent conveyances, and means void in favor of those against whom it is considered or declared a fraud. If the assignee might have succeeded, but if he never took the necessary steps to assert his claim, the sheriff has no right to dispose of the plaintiff’s interest in property on the supposition that the assignee might have-asserted and maintained his claim.

The plaintiff should have judgment for four hundred and nine dollars and thirty-three cents and interest.

Brown, Hall & Vanderpoel, attorneys, and J. Sterling Smith and A. J. Vanderpoel, of counsel, for appellant, urged;—The plaintiff failed to show any property out of which the defendant could havecofiected the said execution, or any portion of it. I. On January 12 the property was all at the Broome-street store, with the exception of twenty-five cases of hats, which were at Algeo’s shop; but on January 14, Sheriff O’Brien removed some of the goods from the Broome-street store to Bogert’s, and afterwards took them to Topping’s; and on January 25, said O’Brien removed the hats that-were at Algeo’s to Topping’s also, so that on February 1, there was no property belonging to E. P. Sanger & Co., except what was in the Broome-street store, and the property at Topping’s, all of which was in ex-Sheriff O’Brien’s custody.

II. The defendant could not have collected the plaintiff’s execution out of the property which was in the Broome-street store on February 1. There was not ■enough of it to satisfy the Tenth National Bank executions. The property was sold by Wilmerding, Hoguet & Co., and the proceeds, amounting to eight thousand two hundred and thirty-nine dollars and twenty-five cents, were paid to and held by the defendant, pursuant to an order of the bankruptcy court. The amount of the Tenth national Bank executions which the defendant held was nine thousand eight hundred and fifty-four dollars and forty-eight cents, exclusive of interest, and were prior to the plaintiff’s execution.

III. The defendamt could not have collected the plaintiff’s execution out of the property at Topping’s. The property was already in custody of the law in O’Brien’s possession, and the defendant could not levy on it. “Property once levied on, remains in custody of the law, and it is not liable to be taken by another execution in the hands of a different officer” (Hagan v. Lewis, 10 Peter U. S. 402-3; Dubois v. Harcourt, 20 Wend. 41; Van Loan v. Kline, 10 Johns. 135; Hartwell v. Bissell, 17 Id. 128; Knox v. Smith, 4 How. U. S. 298; Taylor v. Carryl, 20 Id. 583).

IV. The plaintiff may urge that, although the defendant had not the right to the possession of the property which was at Topping’s, and could not have taken and sold it; nevertheless, if he had made an informal levy on it in O'Brien’s hands, or levied upon the property subject to the right of O’Brien, he would have obtained a lien upon it, which would have followed the property into bankruptcy, and could have been asserted against the assignee in the bankruptcy court. The learned judge who tried the case seemed to have had some such idea, and to have been largely influenced by it in deciding the case. But there can be no informal levy upon property not subject to levy ; and, as we have already shown, this property being already in the custody of the law, could not be levied upon by the defendant. Nor could the defendant have levied upon the property subject to the right of O’Brien’s levy. The interest of E. P. Sanger & Co. in that property, on February 1, 1871, was a residuary interest, or the right to the surplus after O’Brien had satisfied his claim, and such an interest can not be levied upon under an execution. Under an execution only goods and chattels can be taken, and there can be no levy where the sheriff at the time of making the same has no right to proceed and sell the property. In the case of pledged property, the pledgor’s interest can now be levied on, but that is by express statutory provision, and in that case the sheriff can take the property and sell it (3 R. S. 5 ed. 645, § 20; Steif v. Hart, 1 Coms. 20).

V. The learned judge who tried the case seems to have regarded the levy of O’Brien as excessive, and to hold the defendant responsible for it. It undoubtedly was excessive after the other attachments in his hands had been withdrawn ; but O’Brien is liable for that, and not the defendant. O’Brien had a valid attachment, and the defendant had no power or authority to compel O’Brien to release to him any of the property. Evidently O’Brien believed he had more property at Broome-street than was necessary to satisfy the attachment claim, for as soon as he knew defendant had received the Tenth National Bank executions he removed from Broome-street property enough to make him safe, and kept the fact concealed from the defendant. He did not, however, give up his levy on the property remaining in the Broome-street store until the petition in bankruptcy was filed, and the learned judge who-tried this case finds fault with him for giving it up as; soon as he did, and attempts to draw conclusions, unfavorable to the defendant, because O’Brien did not hold on to the said property in Broome-street tintil the bankruptcy proceedings had proceeded far enough to vacate the attachment, although O’Brien retained until that time this property at Topping’s, which was ample to protect the attachment claim. Also, if O’Brien had. at any time released all of the property which he held in excess of what was properly held under the Algeo attachment, it would have been inured, as it did, to the Tenth National Bank executions, and not to the plaintiff.

VI. The petition in bankruptcy against E. P. Sanger & Co., was filed February 24, 1871 ; they were-adjudicated bankrupts March 11; the warrant of seizure was issued to the marshal March 14 ; and the assignment was executed to the assignee April 15,. 1871. The defendant could not, therefore, have levied on any of this property after February 24, 1871, even though he had known where it was, and no injunction had been issued by the bankruptcy court restraining-him from doing so (Miller v. Bolles [N. Y. Ct. of Ap.], reported in 10 Nat. Bk. Reg. 515; Miller v. O’Brien,. 9 Id. 26). A principal inquiry in this case, therefore, becomes narrowed to the question whether or not the plaintiff has shown there was property within the city and county of New York, between February 1 (the day plaintiff’s judgment was docketed and execution issued), and February 24, 1871 (the day the petition in bankruptcy was filed), from which the defendant ought, by the exercise of due and reasonable diligence, to have collected the execution.

In addition to the reasons before given the judgment below is erroneous for the additional one that the defendant did not have notice of any property out of which he could collect said execution, nor is the plaintiff now able to point out the existence of any such property. The learned judge evidently based this finding upon the idea that the property at Topping’s could have been levied on by the defendant if he had known where it was, and that knowing that property had been removed from Broome-street, he was negligent in not following it up and ascertaining where O’Brien had stored it, and what it consisted of. He does not find that defendant knew of the property at Topping’s, but that he “ had notice” of it. The question of defendant’s diligence in ascertaining what property ex-sheriff O’Brien had removed from the Broome street store was immaterial.

Brownell & Lathrop, attorneys, and S. B. Brownell, of counsel, for respondents, urged;—The defendant, Brennan, is liable to the plaintiff for the false return and neglecting to make the money upon his execution. Defendant’s neglect was Ms allowing five thousand and forty-nine dollars and sixty-four cents of the goods levied on by him on January 12, 1871, to be removed from Ms control, and suffering them to go to the marshal in bankruptcy without making any claim to them under plaintiff’s execution or notifying the plaintiff so that he could indemnify the defendant or make a claim in the bankruptcy court, and returning the plaintiff’s execution and thus preventing the plaintiff making any claim in the bankruptcy court. This neglect lost the plaintiff his execution. It is idle to

say that the defendant had no notice of these goods, for he actually levied on them on January 12, 1871, and that levy enured to the benefit of the plaintiffs execution when it came to defendant’s hands without a new levy. A levy under one execution, even though it has become dormant, enures to the benefit of a subsequent execution (Peck v. Tiffany, 2 Coms. 451; Camp v. Chamberlain, 5 Den. 198: Rev. Stat. p. 3, ch. 6, tit. 5 § 1, 314, &c.). A levy under one execution enures to the benefit of a second execution subsequently coming to the same officer (Van Winkle v. Udall, 1 Hill, 559; Birdseye v. Ray, 4 Id. 159; Russell v. Gibbs, 5 Cow. 395; Cresson v. Stout, 17 Johns. 116). It is equally idle to say that he could not have made the amount of plaintiff’s execution from them, on account of the Algeo attachment, for there are two thousand and forty-seven dollars and sixty-nine cents, or five times the amount of plaintiff’s execution beyond the Algeo attachment. Lovick v. Crowder, 8 Barn. & Cress. 132, is in point. The sheriff was held liable for negligence in not asking to see the warrant under which the former sheriff claimed to hold the goods (Cited and approved, Paton v. Westervelt, 2 Duer, 386). “When he was informed that the officer of the former sheriff claimed it under a levy, it was the defendant’s duty to ask to see the warrant or execution. If he had done that, he would have seen from its date that there had been such gross delay as rendered it fraudulent and void.”

By the Court.—Curtis, J

The defense set up in the answer, that the plaintiff’s judgment and execution, were obtained and issued to procure a preference in violation of the bankrupt law of the United States, and therefore void, was in view of the recent decisions, and especially that of the United States supreme court in Wilson v. City Bank (17 Wall. 489), not pressed at the argument, and it becomes unnecessary to consider it here.

The evidence shows that O’Brien, the late sheriff, by McKnight, a deputy, previous to January 1,1871, had levied upon the goods of Sanger & Go., at their store in Broome-street, under an attachment for three thousand dollars issued in a suit wherein one Algeo was plaintiff. On January 12, 1871; the defendant’s deputy, Schmitz, went to this store with the, two executions in favor of the Tenth National Bank,, amounting to nine thousand eight hundred and fifty-four dollars and forty-eight cents, to levy, and made, what he calls, an informal levy. McKnight was in possession, and refused to let him have access to the goods, or possession, or to let him make an inventory of them. Schmitz learning that the attachment case might be settled and McKnight go out, put one Pearsall on guard to notify him, so that he might then take possession.

On January 14, 1871, McKnight removed from the store goods of the value of five thousand and forty-nine dollars and sixty-four cents. Pearsall informed Schmitz of the removal. This was previous to February 24, 1871. Plaintiff’s execution was placed in Schmitz’s hands to be levied February 1, 1871. It does not appear that Schmitz was informed of the value of the goods removed, or to what place they were taken. It was his duty to use due diligence to find property to pay the three executions.

The liability of the defendant depends upon the conduct of his deputy in respect to these goods.

It was considered by the learned judge at the trial, that if the goods were held regularly and in compliance with law under the attachment, the defendant’s deputy had no power to seize or take possession of them, or any part of them. This question was fully discussed at the argument, but in the view here taken of the case it will not be necessary to consider it.

It is difficult to say, that when an attachment has been levied on the property oí a defendant, a sheriff into whose charge executions come to be levied on the same defendant’s property, owes no duties to the plaintiffs in respect to their enforcement. The property may be, as is claimed, in the custody of the law, and not liable to be taken by another execution in the hands of a different officer, yet, can there .not be circumstances that call on the sheriff to exercise a reasonable care and diligence in the matter ?

For instance, in the present case, where an attachment was issued for three thousand dollars to be levied and used in the interest of E. P. Sanger & Co., with the knowledge of Algeo, as the court considered there was some reason for believing if Schmitz’s testimony was to be relied on, and where the assets of E. P. Sanger and Co. amounted to between eighty thousand dollars and ninety thousand dollars, and the sheriff’s deputy, Schmitz, holding the executions, was notified that a part of the goods claimed to be seized under the attachment, were removed in a concealed and surreptitious manner by their custodian, it is very difficult to hold that the sheriff did not owe the duty to the plaintiff of asking the watchman, Pearsall, who informed him of it, what information or knowledge he had about their removal, or of making common inquiries for persons or c.arts likely to remove that large amount of goods, or of asking to look at the warrant of attachment, or of applying to Sheriff' O’Brien himself about the removal, or of calling upon him to release from the levy of the attachment all goods beyond what was necessary to secure the payment of the three thousand dollars and sheriff’s fees.

A proper regard for the administration of justice, has always led courts to inflexibly require the exercise of diligence and fidelity in the execution of process, from all officers to whom the law confides it for execution. Upon the officers charged with the execution of process, from the highest to the lowest, the law confers great powers, and extends to them the amplest protection consistent with the proper discharge of their important duties.

The evidence shows that the deputy Schmitz, omitted to make those inquiries in reference to the goods removed, most likely to afford him information about them. They were not taken from the city, and there does not appear to have been any substantial reason why he did not learn where they were. It is true, Schmitz testifies he asked the plaintiff’s attorney what had become of the goods, and also McKnight and his man and one of the firm of E. P. Sanger & Co. The plaintiff’s attorney, of course, did not know, and the member of the firm of Sanger & Co., and McKnight’s man, refused to answer, and referred him to McKnight, who amply satisfied the deputy’s anxiety and diligence in the matter, by declining to give him any information on the subject.

After this weak and brief investigation, the defendant’s deputy remained tranquil, communicating in no way to the plaintiff’s attorney the very suspicious features o f the transaction apparent upon its face, and and not acting himself or pushing any further inquiries, or taking any of those steps that would in the exercise of common and ordinary care and diligence have brought to his knowledge property of E. P. Sanger & Co., in this county, of the value of thirteen thousand three hundred and eighty-eight dollars and eighty-nine cents, being more than enough to pay off the attachment and the three executions, all of which amounted to thirteen thousand three hundred and sixty-three dollars and eighty-one cents, including the present plaintiff’s. There was an entire omission on the part of the defendant to give information to the plaintiff of this manifestly excessive levy, so that he might be enabled to seek relief, nor did the defendant’s deputy make any demand on sheriff O’Brien, or apply even to have some part of the property relieved from the attachment.

On February 24, 1871, proceedings in bankruptcy were taken against E. P. Sanger & Co., and under these the sheriff was allowed to sell the goods levied upon in the store in Broome-street. These realized eight thousand two hundred and thirty-nine dollars and twenty-five cents. The goods that were surreptitiously removed from the store were sold for five thousand and forty-nine dollars and sixty-four cents. The attachment for the three thousand dollars was dissolved by the bankruptcy proceedings, and the two executions in favor of The Tenth National Bank were set aside by the United States circuit court as void, on the ground that the bank had reasonable cause to believe E. P. Sanger & Co. were insolvent at the time of' the levy. The' defendant returned the plaintiff’s execution unsatisfied. All the property of E. P. Sanger & Co. passed into the custody of the marshal in. bankruptcy while the defendant held the execution, yet he made no claim under it, and gave no notice to the plaintiff, so that he could indemnify the defendant, or make a claim himself in the bankruptcy court.

It is idle to speculate, as to what would have been the fate of the plaintiff’s execution and judgment under the bankruptcy proceeding. There is every reason, from the proofs and the recent decisions, to be lieve they would have been sustained, and it was for the assignee in bankruptcy, and not the defendant, to raise the objection.

Upon considering the questions raised by the defendant, it seems to be clearly settled by the adjudications-of the courts, and as absolutely necessary for the proper administration of justice, that a sheriff to whom... an execution is issued, is bound to use all reasonable-endeavors to execute the process of the law, in the most effectual manner. As a mere agent he would be' required to exercise at least the ordinary diligence that persons of common prudence are accustomed to use about their own business and affairs. Voluntary ignorance, or that which arises from a neglect to make proper search or inquiries, will not excuse him. His duty is to inquire of those who would probably be' acquainted with what the due execution of his process requires him to ascertain, and when he searches, to search in localities where it was probable he might find what he was called upon to find. When he holds various executions against the same defendants, it is a breach of duty for him to lend himself to one party to the wrongful prejudice of another, or to withhold information from one party of proceedings that may wrongfully deprive him of his remedy, and he has been held liable for negligence in not asking to see the warrant under which the former sheriff claimed to hold the goods (Tomlinson v Rowe, Hill & Den. Sup. 410; Henman v. Borden, 10 Wend. 369; Phil. Ev. C. & H. notes, p. 692, ed. 1859; Warmoll v. Young, 5 Barn. & Cress. 660; Lovick v. Crowder, 8 Id. 132; Dean v. Macknamara, 5 Dowl. & Ryl. 95).

Applying these rules to the conduct of the-defendant’s deputy with the plaintiff’s execution, it is apparent that he was guilty of neglect, and that there was a failure to exercise ordinary diligence, and that by his omission to take proper steps and to make proper inquiries, and of the persons likely to know, and also by his failure to notify the plaintiff of the proceedings in bankruptcy, so that he could make his claim in the bankruptcy court, the plaintiff lost the benefit of his execution. There was that failure of diligence on the part of the defendant that entitles the plaintiff to recover against him, and the judgment appealed from should be affirmed, with costs.

We think, however, there are questions of law involved, • which ought to be reviewed in the court of .appeals. We will, therefore, enter an order under Laws of 1874, ch. 322, to that effect, if desired by the appellant.

Monell, Ch. J. (concurring).

I concur in affirming the judgment, and in the entering of the order above mentioned.  