
    Lewis et al. v. Douglass, Sheriff.
    
      (Supreme Court, General Term, Fourth Department.
    
    July 20, 1889.)
    . 1. Sheriffs and Constables—Liability for Negligence.
    It is the duty of the sheriff, on levying an attachment on real property, to file the notice thereof required by Code Civil Proc. N. Y. § 649, notwithstanding the plaintiff’s attorney is also required to sign the notice; and where the collection of the . debt is lost by the sheriff’s negligent omission to file the notice, after promising ' the attorney that he would do so, he is liable in his official capacity for the damages.
    2. Same—Defenses.
    Where, in consequence of the sheriff’s failure to file the notice, the attached property is conveyed to a third person, apparently by a valid deed and without notice, in an action against the sheriff for the damages, defendant cannot, by a suggestion that the deed is invalid, and that the purchaser had actual notice, compel plaintiffs, in effect, to litigate with such purchaser the validity of his deed.
    3. Same.
    The fact that plaintiffs did not, within 10 days after the granting of the attachment, file the affidavits upon which it was granted, as required by Code Civil Proc. § 639, did not affect the validity of the proceedings, and constitutes no defense for the sheriff.
    4. Same—Waiver of Claim against Sheriff.
    The fact that at the request of plaintiff’s attorney defendant filed the notice subsequent to the conveyance, and after rendition of judgment in the attachment suit, did not operate as a waiver of any right which plaintiffs then had against him.
    Appeal from judgment on report of referee.
    Action by Alfred C. Lewis and Alvin R. Smith against William H. Douglass, to recover damages for the negligence of defendant in failing to complete a levy on real estate, under an attachment issued to him in an action brought in the supreme court by plaintiffs against one Thomas H. Clarke. Defendant, during the year 1885, was sheriff of Delaware county. Clarke was indebted to plaintiffs in the sum of $215, with interest from April 25, 1885, on two promissory notes. On September 8, 1885, plaintiffs, by their attorney, issued and delivered to defendant for service a summons and complaint against Clarke upon said debt, and these papers were served on Clarke personally on September 9,1885. On September 8,1885, plaintiffs obtained from the county judge of Otsego county an attachment against the property of Clarke, in proper form, directed to the sheriff of Delaware county. This, w'ith the papers accompanying it, was on the same day delivered to defendant for service, and he on the same day, by virtue of the attachment, duly levied on all the personal property of Clarke in that county liable to sale on execution, and properly served on Clarke the papers; After this, and on the evening of September 9, 1885, one of the plaintiffs and their attorney met defendant at Delhi .for the purpose of attaching the interest of Clarke in certain real estate in that county; such interest being, as the referee finds, of the value then of $600 over and above all incumbrances. A notice in the form required by section 649 of the Code was prepared and signed by the sheriff and by plaintiffs’ attorney, and an inventory and appraisal was made. This notice, together with copies of the affidavit and undertaking upon which the warrant of attachment was issued, the warrant, the oath of the appraisers, and the certificate of appraisal were left with defendant to be filed with the clerk. The office of the clerk was then closed. Defendant was instructed to and then agreed to fije the same with the clerk on the following morning, and plaintiff and his attorney, relying on defendant to file the papers, left Delhi, They resided out of the county. Defendant, through his forgetfulness, neglected to file any of the papers until October 19, 1885. On the 23d September, 1885, Clarke conveyed his interest in said real estate to one Bell, who owned a mortgage on said lands on which was then due and unpaid about $3,400, and this was the consideration of the deed. It is not found that this deed was fraudulent, or that Bell had notice of the attachment. The evidence shows
    
      that Bell had other claims against Clarke, amounting to about $150. The deed to Bell was recorded September 26, 1885. On the 12th October, 1885, plaintiffs obtained judgment against Clarke for $282.18. Upon execution issued, the personal property levied on under the attachment was sold, realizing $56. Clarke is-insolvent, and had no other property out of which to satisfy plaintiffs’ claim, except the personal property so levied on and sold and said real estate. The referee finds that, by the failure to complete the service -of the attachment by filing the notice, plaintiffs lost the balance of their debt; that it was the duty of defendant, as sheriff, to file the notice within a reasonable time after it was prepared; and that, by the negligent failure of defendant to do so, plaintiffs were damaged in the amount of such balance. For such balance, being, after deducting some fees due defendant, the sum of $242.74, including interest, the referee ordered judgment.
    Argued before IIardin, P. J., and Martin and Merwin, JJ.
    
      Youmans, Adee & Youmans, for appellant. Burr Mattioe, for respondents.
   Merwin, J.

There is no doubt about the liability of the sheriff for damages occasioned by his negligence in the execution of process, (Ransom v. Halcott, 18 Barb. 56; Hoffman v. Conner, 13 Hun, 541; Code, § 102;) but it is claimed here that it is not a part of the duty of the sheriff to file the notice required by section 649 of the Code, and that if he agreed to file it, that would only be an individual matter, and would not support an action against him as sheriff. This seems to be the main proposition urged on defendant’s behalf. By section 644 of the Code the obligation is on the sheriff to immediately execute the Warrant, by levying on so much of the personal and real property of the defendant, within his county and not exempt, as will satisfy the plaintiff’s demand, with the costs and expenses. Section 649 prescribes how a levy must be made on real estate, and the filing of the notice is an essential part of it. It cannot be completed without it. The filing is therefore within the direct line of the official duty of the sheriff. The fact that the attorney must sign the notice does not make it the duty of the attorney to make or complete the levy. The attorney by signing does his part towards enabling the sheriff to perform his duty. Under the old Code, the filing of this notice was not required, but a notice of pendencj could be filed. Code Proc. § 132. That would effectuate a lien, and this could be attended to by the attorney. Under the present Code, the provision as to notice of pendency does not apply to attachments, but the notice in question takes its place. Section 1670, and Throop’s note. In some respects this notice is the act of both the sheriff and the attorney. Assuming that either had a right to file it when properly prepared and executed, the sheriff, by undertaking with the attorney to do it, relieved the attorney from responsibility in the matter, and the attorney as well as the party had the right to rely on the promise of the sheriff. By such promise the act did not cease to be a part of his official duty. We think that the sheriff, in failing to file the notice before the con\eyanee by Clarke, neglected his official duty.

The finding of the referee as to the value of the property is fully sustained by the evidence. The plaintiffs, therefore, by reason of the neglect of the defendant, failed to obtain a lien, and lost the opportunity to collect the full amount of their judgment. It is suggested that the deed to Bell was invalid, and that he had knowledge of the attachment. But neither of these things are found by the referee or disclosed by the evidence. The defendant cannot, as a defense, turn the plaintiffs over to a litigation with Bell, when, if he had -done his duty, the plaintiffs would have acquired a lien, from which presumptively they could have realized the amount of their judgment. Hor is there anything in the case to support a waiver or an estoppel. The plaintiffs did not, within 10 days after the granting of the attachment, cause the aliidavits upon which it was granted to be filed as required by section 639, but this did not affect the validity of the warrant or the proceedings under it. 1 Bumsey, Pr. 523, and cases cited. The defendant testifies that, when he filed the papers on the 19th October, 1885, he did so at the direction of the plaintiffs’ attorney. This was after the recovery of the judgment, and did not operate as a waiver of any rights the plaintiffs had against the sheriff. The other points suggested by the appellant’s counsel we have examined, but find no good ground for reversing the judgment. The judgment should be affirmed. All concur.  