
    J. M. Crouse and Charles B. Crouse, Resp’ts, v. Luman Bailey, Sheriff, App’lt.
    
      (Supreme Court, General Term, Fourth Department
    
    
      Filed May 23, 1890.)
    
    1. Shebiffs— Not liable whebe eetention of execution was at plaintiff's bequest.
    An action will not lie against a sheriff for failure to return an execution within or at the expiration of sixty days where the retention for that time was at the request of the plaintiff’s attorney; the giving of a hand after the return day does not cast any new duty on the sheriff, as at that time he could neither levy nor sell.
    2. Same — Evidence.
    Where the answer in an action for failure to return an execution alleges that the judgment debtor was insolvent and that the judgment was and is wholly uncollectible, the defendant may prove that the judgment debtor had no property upon which to levy the execution.
    3. Same.
    A return nulla Iona is prima facie evidence that the execution debtor had no property out of which the sheriff could make the execution.
    (Meewin, J., dissenting.)
    Appeal from a judgment entered upon the report of a referee in Oneida county. The plaintiffs recovered a judgment against one William R. Fuller on the 26th day of January, 1886, which was docketed in St. Lawrence county, January 27, 1886, for the sum of $164.05. On the 27th of January, 1886, an execution was issued on said judgment and placed in the hands of the defendant as sheriff of St. Lawrence county.
    In the first count of the plaintiffs’ complaint, it is alleged that the defendant “ failed to return said execution to the damage of these plaintiffs of $164.05, with interest thereon from January 26, 1886.”
    In the second count of the plaintiffs’ complaint it is alleged that “ there was within said county of St. Lawrence personal property belonging to said William. R. Fuller, to wit: A stock of goods consisting a£ dry goods and groceries generally in the possession and under the ‘.ontrol of said Fuller, of which said defendant then and there had due notice, out of which the defendant might have made and satisfied said execution, nevertheless in violation of his duty as such sheriff, he failed and neglected to levy and make the moneys or any part thereof, as by said execution he was required to do.”
    In the third count of the plaintiffs’ complaint it is alleged that the plaintiffs, on the 28th of April, 1886, executed a bond of indemnity and delivered the same to the sheriff to save and keep him harmless, and indemnify him, and all persons aiding and assisting him, from trouble and damage by reason of a levy and sale under the execution, and that the sheriff “failed to levy the moneys or any part thereof as by said execution he was required to do.”
    In the defendant’s answer he sets up in mitigation of damages “that at the time of the recovery of the judgment described in the complaint, and ever since said time and prior thereto, said William R. Fuller, the judgment debtor named in said judgment, was and is utterly insolvent and worthless, and said judgment is and was wholly uncollectible.”
    The referee found as a conclusion of law that the plaintiffs were entitled to recover $197.25, and directed judgment for that amount; exceptions were filed to the referee’s report and his refusals to find in accordance with certain requests made.
    The case contains all the evidence.
    
      V. P. Abbott, for app’lt; George W. Adams, for resp’ts.
   Hardin, P. J.

In response to a request the referee has found that no levy was made by the defendant as sheriff prior to April 28, 1886. As the execution was received by the sheriff on the 27th day of January, 1886, the sixty days in which to make a levy expired March 28, 1886. The referee has found: “That the said defendant made no levy under the execution in his hands against the said defendant, and at the request of the plaintiffs’ attorney retained the execution in his hands beyond the sixty days allowed by the terms of said execution.” If the facts mentioned in the first count of the complaint, which are not denied, be assumed to be true, Code of Civil Procedure, § 522, as the retention of the execution for sixty days was “at the request of the plaintiffs’ attorney, no action would lie for such failure to return within or at the expiration of the sixty days.

In Smith v. Smith, 60 N. Y., 165, Allen, J., said: “The defendant was not liable for neglect or omission of duty by himself or deputy in obedience to the directions, or with the assent, or by the authority of the plaintiffs.” It is well settled that a sheriff cannot levy after the return day of the execution. His right to levy must be exercised, if at all, during the lifetime of the execution. Hathaway v. Howell, 54 N. Y., 98; Smith v. Smith, 60 id., 164; Walker v. Henry, 85 id., 134.

As the bond of indemnity was not given until after the execution had run sixty days, and no levy was made within the sixty days, the sheriff, upon receiving the bond, could not ' levy or sell. The bond did not cast any fresh duty upon the sheriff, nor does it furnish any evidence of neglect of duty.

In Jackson v. Daggett, 6 N. Y. State Rep., 868, it was held that' where a bond of indemnity is given the sheriff is not liable if he does not sell, provided he prove that the execution debtor has no title to property covered by a levy; but it is argued that it was the duty of the sheriff to levy within the lifetime of the execution, and that because he did not levy he is liable. It is in proof, however, that the defendant was insolvent, and the defendant testified that he made an effort to find property “ upon which to levy the execution, but could find none.”

Upon the trial it was proved that the execution was returned by the sheriff nulla bona; that return was prima facie evidence that the execution debtor had no property out of which the sheriff could make the execution. Bechstein v. Sammins, Sheriff, 10 Hun, 585.

It was competent for the defendant to prove under the pleadings that the judgment debtor had no property upon which to levy the execution. Humphrey v. Hathorn, 24 Barb., 280.

Plaintiff did not furnish sufficient testimony to overcome the evidence thus given by the defendant.

. The referee was asked to find and hold as a matter of law, that the execution debtor “ had no property out of which said execution could have been madethis was refused, and the defendant has excepted to such refusal. It seems the sheriff, on the 28th of January, 1886, held an execution against the son of William R. Fuller, and upon that he had made a levy, and he wrote to the plaintiffs’ attorney, supposing that his levy was upon goods of the plaintiffs’ debtor. In that supposition he was mistaken ; nothing appears in the evidence to indicate any bad faith' on. the' part of the sheriff or intention to mislead or deceive the-plaintiffs, and there is not sufficient evidence to charge him with deceit or fraud practiced upon the plaintiffs or their attorneys.

If the son of the execution debtor was the purchaser of the plaintiffs’ goods and became indebted for them, and the plaintiffs by mistake obtained a judgment against the father for the debt, as suggested in the letter of plaintiffs’ attorney, the plaintiffs could not upon their execution against William R. seize and sell the goods of the son. Farnham v. Hildreth, 32 Barb., 277. It is not needful to determine whether the plaintiffs would be entitled to nominal damages against the sheriff for not returning the execution as soon as the plaintiffs ceased to assent to its retention by the sheriff, as a determination of that question in their favor would not authorize them to retain the judgment for the damages given to them by the referee, which are equal to their judgment and the interest thereon.

The views we have already expressed lead irresistibly to the conclusion that there must be a reversal.

Judgment reversed on the exceptions and a new trial ordered before another referee, with costs to abide the event.

Martin, J., concurs.

Merwin, J.

(dissenting) I doubt about the propriety of a reversal.

The execution against W. R Fuller was delivered to the defendant as sheriff on 27th of January, 1886. The defendant, in acknowledging its receipt, informed the plaintiffs’ attorney that he hafl a levy on Fuller’s stock of goods on a prior execution. On the 3rd of February the defendant wrote plaintiffs’ attorney that the other execution was against Frank H. Fuller, and that W. R. Fuller claimed he was worth nothing.

Defendant in his letter further said that there were goods enough in the store to pay all the claims in his, the sheriff’s, hands. He said nothing about not having levied under the plaintiffs’ execution. On the 5th of February, plaintiffs’ attorney wrote defendant, “ we want our levy held.” On the 26th of February, the attorney wrote the defendant about the claim, saying, among other things, “we shall make no point against you on holding over sixty days, so please write us what you wish in the premises and what you think best to be done.” On March 29th the attorney wrote the defendant that the plaintiffs wished him to see and collect the execution out of any property in the possession of the defendant in the execution unless he paid, and “if you wish bond from us, so advise.”

Thereupon the defendant asked for a bond of indemnity, and it Was given him on the 26th of April. Ho sale was made, and the matter run along for some time. On October 18th, plaintiffs’ attorney wrote defendant: “ We want the above matter closed up without any more delay. We have long since and at your request sent you a bond to protect you on your levy.” On Decern? ber 31st the defendant wrote the attorney, “I saw Mr. Fuller a few days ago and he said he had a mortgage of $100 that he would turn out to satisfy your judgment in part, and would pay the balance as soon as he could.”

Hothing was paid the plaintiffs, the execution was not returned, and this action was brought the 27th of January, 1887.

Very clearly the plaintiffs supposed, and had a right to suppose, from what the defendant said and did, that the defendant had a levy upon their execution on the store of goods in the possession of W. R. Fuller. The bond of indemnity was given on this basis, and was received by the sheriff on that basis if he acted in good faith. . The defendant has now no right to say that the bond was not given during the life of the execution. If he did not in fact make a levy, it was his duty to have done so.

But the defendant now says that, notwithstanding he asked for and received a bond, still he was not obliged to go on and sell. The Code, § 1418, says that if, after an inquisition in favor of a claimant, an undertaking to indemnify is given, “ the officer must detain the property as belonging to the judgment debtor.”

Assume, however, that the officer could still refuse to go on, he by doing so took upon himself the burden of showing that the property did not belong to the defendant in the execution. Has he done so in this case ? The referee says not, and finds that the property was .the property of W. R. Fuller.

It was certainly in his possession and control. The defendant himself testifies: “ So far as I could see, W. B. Fuller was in possession of the goods and selling them, and had charge of the store; no one else made any claim to the goods to me but W. B. Fuller; he run the store nearly up to his death, in December, 1887.” F. H. Fuller was not called as a witness, nor yras it shown that he in fact owned the goods.

The evidence of insolvency that was offered did not necessarily show that W. B. Fuller did not own the goods. The return by defendant of the plaintiffs’ execution nulla bona on the day of the trial of this action, was not entitled to any weight on this question. t?

I am inclined to the opinion that the finding of the referee, in effect that the defendant had not shown that the property did not belong to W. B. Fuller, should not be disturbed.

The delay of the defendant after receiving plaintiffs’ bond was evidently for the accommodation of Fuller, and upon his promise to pay the execution. He did not delay because some one else claimed the property.

I think the judgment should be affirmed.

Judgment reversed upon the exceptions and new trial ordered before another referee, with costs to abide the event.  