
    Abraham Cohen, Respondent, v. Samuel Sobel and Jacob Sobel, Appellants.
    (Supreme Court, Appellate Term,
    February, 1909.)
    Deceit — Persons entitled to sue — Execution creditor or sheriff.
    Sheriffs — Actions by and against sheriffs — Recovery of property from third person; Action against sheriff.
    The right of action against one who wrongfully and fraudulently claims property held by a sheriff by virtue of a levy under an execution and- to whom the sheriff surrenders the property on such a claim, belongs to the sheriff and not to the execution creditor.
    In such a case the remedy of the execution creditor is against the sheriff.
    Appeal by the defendants from a judgment of the Municipal Court of the city of New York, sixth district, borough of Manhattan, overruling a demurrer to the complaint and awarding final judgment in favor of the plaintiff.
    Matthias Radin, for appellants.
    Morris Meyers, for respondent.
   Giegerich, J.

The complaint alleged the recovery by the plaintiff of a judgment against the J. Block Shirt Company, a corporation; the issuance of . an execution and' a levy thereunder by the sheriff; that thereafter the defendants made claim to certain cloth included in the levy; that thereafter, solely by reason of such claim, the defendants took into their possession and received from the sheriff the said cloth and have withheld t-he same, so that the sheriff was unable to sell it under the execution; that the defendants’ claim to the property was false and fraudulent and known to them to he so at the time and was made for the purpose of cheating and defrauding the plaintiff; and that, by reason of the said claim and its recognition by the sheriff, the' plaintiff was damaged in the sum of $100, the value of the goods.

The defendants demurred and the demurrer was overruled and, upon the admission of counsel for the defendants that the facts were correctly stated in the complaint, final judgment was rendered for the plaintiff for the value of the cloth.

The defendants appeal to this court, claiming that the complaint does not state facts sufficient to constitute a cause of action, and I think they are right.

It is well settled that the remedy of the execution creditor for any wrongful interference with the goods upon which a levy has been made is against the sheriff. The wrongdoer is liable to the sheriff, but not to the execution creditor, except where a right of action in favor of the latter is expressly given by statute; and in this manner the wrongdoer will be made to answer for his wrong to the officer, and the latter, in time, will respond to the plaintiff. Barker v. Mathews, 1 Den. 335; Ansonia Brass & Copper Co. v. Pratt, 10 Hun, 443, 444; Scott v. Morgan, 94 N. Y. 508.

It does not appear from the complaint whether the claim of the defendants to the property in question was submitted to the sheriff’s jury, as provided by section 1418 of the Code of Civil Procedure, or whether the plaintiff authorized the sheriff to deliver it to the defendants upon the faith of their representations, or whether the sheriff made such delivery voluntarily. So far as the complaint shows, the sheriff acted without either the plaintiff’s authorization or the protection of a verdict in favor of the claimant, and what we have said is entirely applicable to such a situation. It may be that, if the plaintiff was induced by the false representations of the defendants to authorize a delivery to them or, after trial by the sheriff’s jury, to refrain from giving the undertaking prescribed by the Code, a different result would be necessary. As to this we express no opinion, but the plaintiff should be allowed to amend his complaint if he be so advised.

The judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend his complaint upon payment of all costs hereby awarded,

Gihdeesleeve, J., concurs.

Seabuby, J.

I concur in the result. I am compelled to this conclusion because the complaint does not allege that, after the defendants made their claim to the property, a jury was impanelled to try the validity of the claim and that the sheriff delivered the property to the defendants pursuant to the finding of the jury upon such false and fraudulent claim and upon the failure of the plaintiff to give an undertaking. If such an allegation was contained in the complaint, I think an entirely different situation would be presented. The opinion of Hr. Justice Giegerich- very clearly points out that the complaint in its present form does not make it appear that the sheriff lawfully delivered the property to the defend" ants. If the sheriff unlawfully delivered the property to the defendants, the plaintiff would have his remedy against the sheriff and not against the defendants. If the delivery to the defendants was made pursuant to section 1418 and 1419 of the Code of Civil Procedure, the interesting question which the plaintiff’s counsel seeks to raise would be fairly presented. While we are to construe the pleading liberally and the facts stated in the complaint are admitted by the demurrer, we cannot assume the existence of facts which are not pleaded. It would not be proper at this time, in view of the present condition of the complaint, to discuss the question which the counsel for the plaintiff seeks to raise.

The judgment should be reversed, and plaintiff’s counsel may be able fairly to present the question he seeks to raise by an amendment to his complaint.

Judgment reversed.  