
    Harrison P. Bishop, Resp’t, v. Gilbert S. Mosher et al., App’lts.
    
      Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    ■Constable—Sale of exempt property under execution an official act.
    The taking and selling by a constable by virtue of an execution property exempt therefrom, is so far an official act as to render his bondsmen liable for damage.
    Appeal from an interlocutory judgment entered in Cattaraugus -county, overruling a demurrer to the complaint.
    This action is against the defendants, as sureties upon the official bond of Joseph C. Cole, a constable of the town of Little Yalley. The complaint alleged the recovery of a judgment in the justice’s court against the plaintiff, Harrison P. Bishop, the issuing and delivery of an execution to Gole, as constable, directing him to satisfy the judgment out of the personal property of this plaintiff (the defendant therein), within the county of Cattaraugus, not exempt from levy and sale by virtue of an execution; Dole, acting under and by virtue of the execution, levied upon a large amount of personal property belonging to the defendant in «aid execution; some of the property so levied on was exempt from levy and sale by virtue of an execution; the plaintiff duly claimed said exemption, and forbade the sale of the exempt prop•erty; Cole, notwithstanding such claim of exemption, sold all of the property, including that which was claimed to be exempt.
    The exempt property consisted of a pair of horses, double harness, a drag, mowing machine, one pair heavy bob-sleds, and one heavy set of trucks used as a wagon. The defendant in said execution was a householder; the described property was necessary for the carrying on of his business. The exempt property was worth $250. A judgment was recovered against the constable, for the value of said exempt property, in a justice’s court. An ■execution was duly issued on said judgment, and returned wholly unsatisfied. Cole was, at the time of the levy and sale under the ■execution, a constable of the town of Little Yalley. The defendants had duly executed under their hands and seals a bond whereby they jointly and severally agreed to pay to each and every person who might be entitled thereto, all such sums of money as the said -constable might become liable to pay on account of any execution which should be delivered to him for collection; and also pay «each and every person any damages which he might sustain from •or by any act or thing done by said constable, by virtue of his office of constable. A demurrer was interposed to the complaint, the objection thereto being that it failed to state facts sufficient to «constitute a cause of action; the demurrer was overruled and an interlocutory judment entered, and from that judgment an appeal was taken to this court.
    
      W. S. Thrasher, for app’lts; Charles Z. Lincoln, for resp’t.
   Lewis, J.

The defendants contend that it having been ad-' judged that the constable had no right under his execution to sell the exempt property, he committed a trespass in so doing, and that they as sureties are not liable for his act The constable did not commit a trespass in levying upon the exempt property; the exemption was a privilege personal to the defendant in the execution ; he could claim it or not, as he wished. Sullivan v. Farley, 63 How., 371; Brooks v. Hathaway, 8 Hun, 290.

Hpon being notified by the defendant that he claimed the exemption, it was the duty of the constable to investigate the facts, and determine as well as he could whether it was in fact exempt property. He was required to determine whether the defendant in the execution was a householder, or had a family for which he was providing, and whether the articles mentioned were necessary for defendant as such householder, etc. The determination of this question was in the line of his duty as a constable. When he carne to the conclusion that the property was not exempt, and determined to sell, he assumed to proceed by virtue of his office as constable. It was thereafter determined by the judgment of the court that the property was in fact exempt from levy and sale, and that the constable had no right to sell it and that he was liable in an action for trespass for the value of the property. Every act performed by him he claimed to do in his official capacity as constable; he applied the proceeds of the sale, we ■assume, to the satisfaction of the execution.

The question here presented has been much litigated in the •courts of this and other states, and it is difficult to reconcile all of the decisions, the weight of authority m this state sustains the plaintiff’s contention that the selling of this exempt property was an official act, an act done by virtue of his office as constable.

It was held in Cumming v. Brown, 43 N.Y., 514, that the taking by a deputy sheriff of the property of another by virtue of an attachment against the debtor’s property, and selling the same under execution, to satisfy a judgment in the action, were official acts.

In the People v. Schuyler, 4 N. Y., 173, the defendants were sureties of a sheriff upon a bond conditioned for the faithful performance of the duties of his office, etc. The sheriff, by virtue of an attachment against the property of an absconding debtor, seized and sold the goods of another person. It was held that the act constituted a breach of the official bond of the sheriff, and that an action on the bond would lie against him and his sureties • in behalf of such owner. It is difficult to distinguish between the liability of sureties upon an official bond conditioned for the faithful performance of the duties of an office, and one conditioned to pay damages which may be sustained by any act or thing done by virtue of the office of an official. In either case,, when committing a trespass, it may with considerable plausibility be argued that he was not performing an official act; that the act was beyond and outside of his office.

The doctrine of the case of the People v. Schuyler has been approved by the courts of this state, and of the United States.

In Lammon v. Feusier, 111 U. S., 17, Justice Grey in an elaborate opinion reviews the authorities, and holds that a marshal and his sureties are liable, where the marshal levies upon the property of another on a process against defendant.

A justice of the peace, sued for malicious prosecution, is sued for an act done by virtue of his office. 6 Johns., 109

The appellants’ coúnsel claims that the case of the People ex rel. Comstock v. Lucas, 93 N. Y., 585, is in conflict, with the doctrine of the People v. Schuyler, supra. The condition of the bond in the Lucas case was that the constable would pay over to the persons entitled thereto all such sums of money as he should become liable to pay on account of any execution delivered to him for collection. . The alleged breach consisted in seizing the goods of a third person under an execution against the property of another. The court held that the sureties were not liable, because of the special and limited language and purposes of the bond. This case does not disturb, we think, the doctrii w of the People v. Schuyler.

The officer in this case and the officer in the Schuyler case were both attempting to carry out their instructions. In doing so they performed acts which gave a cause of action against tlx m, but what each did pertained to the duties of his office; he was attempting to perform an official .duty. It is not alleged in the complaint that Cole acted in bad faith in selling the exempt property of the plaintiff.

Although the question here presented is perhaps not free from doubt, we are of the opinion that the selling of the exempt property by Cole was an act done by virtue of his office of constable, and that his sureties are liable upon their bond to the plaintiff for the damages he sustained thereby.

The judgment appealed from" should be affirmed, with costs, with leave to'the defendants to answer the complaint within twenty days after service of a notice of the entry of judgment upon payment of the costs.

Dwight, P. J., and Macomber, J., concur.  