
    In the Matter of the Application of Henry Kupfer & Company for an Order to Quash the Execution Issued on the Judgment of Isaac Goldowitz and Abraham Epstein against Henry Kupfer & Company. Max S. Grifenhagen, Sheriff of the County of New York, Appellant; Henry Kupfer & Company, Respondent.
    First Department,
    December 31, 1914.
    Judgment — sufficiency of execution.
    An execution which recited that the judgment was recorded in the City Court and the judgment roll filed in the office of the clerk of that court, but erroneously directed the sheriff to return the execution to the county clerk instead of to the clerk of the City Court, and which w.as tested in the name of a justice- of the Supreme Court, instead of a judge of the City Court, is sufficient.
    Such an execution would have been good, even if it had not been tested at ah.
    The erroneous direction as to its return was immaterial, because the law and not the direction contained in the -instrument is controlling upon the sheriff.
    The fact that the execution was indorsed with the name of the Supreme Court, instead of the City Court, was immaterial, because the indorsement is no part of the execution.
    Appeal by Max S. Grifenhagen, sheriff of the county of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of June, 1914, granting a motion to vacate an execution and directing the repayment by the sheriff of poundage and fees collected and retained by him thereunder.
    
      Abraham, S. Gilbert, for the appellant.
    
      Leo G. Rosenblatt, for the respondent.
   Scott, J.:

The order appealed from provides that a certain execution and the levy thereunder “be and the same are hereby vacated, set aside and quashed as invalid, illegal'and irregular, and upon the grounds set forth in said notice of motion. ” It was further ordered that the sheriff repay to defendant a certain sum paid or poundage and keeper’s fees, and that the plaintiffs reimburse the the sheriff.

The form of the order is quite unusual, and we are referred to no precedent for it, but it is not necessary to dwell upon the form in which relief has been afforded to the plaintiffs. The question raised by the sheriff’s appeal is whether or not the plaintiffs are entitled to any relief as against him. Plaintiffs entered a judgment in the City Court against defendant, and' immediately issued an execution thereon to the sheriff. Much is said in the moving papers about the action of the plaintiffs’ attorney from which we are asked to infer that he should not have entered judgment and issued execution when he did. All that is immaterial on the present appeal which is prosecuted by the sheriff alone, and he is not charged with complicity in anything which plaintiffs’ attorney may have done before the issue of the execution. The grounds for holding the sheriff liable to refund the poundage and keeper’s fees paid to him are that the execution itself was invalid for defects appearing upon its face. These defects are: First, that the execution appeared to be issued out of the Supreme Court and was tested in the name of a justice of that court, whereas the judgment was entered in the City Court. Second, that the sheriff was directed to return the execution to the county clerk instead of to the clerk of the City Court; and third, that the execution was indorsed with the name of the Supreme Court instead of the City Court.

The last objection is of no moment because the indorsement of the title of the action on the back of the paper is no part of the execution which would be valid if wholly unindorsed. The execution (the original being produced on the argument) correctly recites that the judgment was recorded in the City Court and the judgment roll filed in the office of the clerk of that court. As received by the sheriff it directed him to return the execution to the county clerk and was tested in the name of a justice of the Supreme Court. Later these errors were corrected by or with the consent of the plaintiffs’ attorney, the clerk of the City Court being substituted for the county clerk, and the name of a judge of the City Court being substituted for that of the justice of the Supreme Court. These corrections appear to have been made after the execution was levied, and we, therefore, disregard them, as the sheriff’s right to poundage depends upon the validity of the execution as it was when the levy was made.

The essential requisites of an execution against property are set forth in sections 1366-1368 and 1369 of the Code of Civil Procedure. They are the following: It must intelligibly describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the court in which, the judgment was rendered; and, if it was rendered, in the Supreme Court, the county in which the judgment-roll is filed. It must require the sheriff to return it to the proper clerk, within sixty days after the receipt thereof.

It must specify the sum recovered, or directed to he paid, and the sum actually due when it is issued.

It must state the time when the judgment was docketed in the office of the clerk of the county.”

All of these essential recitals were correctly made in the execution complained of.

Neither of the remaining defects in the execution rendered it void in the hands of the sheriff. It would have been perfectly good if it had not been tested at all, and consequently an erroneous testation did not avoid it. (Douglas v. Haberstro, 88 N. Y. 611.) Nor was the erroneous direction as to its return of any consequence, because the law and not the direction contained in the paper was controlling upon the sheriff. (Wright v. Nostrand, 94 N. Y. 31, 48.) The execution as it was delivered to the sheriff was a sufficient warrant for his action, and he might have subjected himself to serious responsibility if he had refused to act thereon. The order appealed from must he reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  