
    Jacob Kirschberg, Respondent, v. Mary E. Coghlan, as Executrix of the Estate of William F. Coghlan, as Marshal of the City of New York, Appellant.
    (Supreme Court, Appellate Term,
    April, 1909.)
    Limitation of actions — Period of limitation — Actions against persons in official or particular capacity — City marshal —Act done in official capacity.
    Where, in an action against a marshal of the city of New York to recover for a wrongful levy made under a warrant of attachment, it appears from the pleadings and proof that he acted in good faith in the belief that he had authority, his act must be regarded not as a trespass but as having been done in Ms official capacity.
    
      Under seótion 385 (1) of the Code of Civil Procedure, an action ■ against a marshal of the city of New York for an alleged -wrongful levy under a warrant of attachment must be brought within one year after the alleged cause of action accrued.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, second district, borough of Manhattan.
    J. Leon Brandmarker, for respondent.
    James T. Moore, for appellant.
   Seabury, J.

This action was originally brought against William F. Ooghlan as a marshal of the city of Hew York, to recover damages for a wrongful levy made under a warrant of attachment alleged to have been made by said Coghlan as marshal on September 27, 1906. The action was commenced on March 26, 1908. The only question involved upon this appeal is whether this action is barred by the Statute of Limitations. The pleadings and the proof show that, in making the levy, the defendant assumed to act as marshal and acted in good faith, believing that he had authority to act.

His act was, therefore, not merely colore officii but virtute officii. Under these circumstances, his act must be regarded not as a trespass, but as having been done in his official capacity. An action against a marshal for such an official act must be brought within a period of one year, or it is barred by the Statute of Limitations. Dennison v. Plumb, 18 Barb. 89. Section 304 of the Municipal .Court Act provides that “All provisions of law in relation to the taking and restitution of property by sheriffs of counties shall apply to the taking and restitution of property by the said marshals, except that a marshal is not restricted in the performance of his duty as such, to the territorial limits of a county, when engaged in the service or execution of process or mandates, but is authorized to act within the limits of the city of Hew York.”

Subdivision 1 of section 385 of the Code of Civil Procedure prescribes that “An action against a sheriff or a coroner, upon a liability incurred by him, by doing an act in his official capacity ” must be commenced “ within one year ” after the cause of action has accrued. The acts complained of in this action were within the meaning of this statute, and an action against the marshal for his official act was within the one year period of limitation.

The judgment is reversed and the complaint is dismissed, with costs to the appellant.

Gildersleeve and Lehman, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant.  