
    AMERICAN HOSIERY COMPANY v. RILEY.
    
      City Court of Brooklyn, General Term,
    
    1882.
    
      Again, Court of Appeals,
    
    1883.
    Action against Sheriff for False Return.—Court’s Power over its prior Orders.—Jurisdiction of Court of Appeals.
    In an action against a sheriff for making a false return to a writ of execution, it is a sufficient justification for the return to show that the sheriff has paid over the alleged property, to other persons than plaintiff, in conformity with other process and orders of court, made prior to the plaintiff’s, whether such prior orders and process were, in strictness, properly made or not.
    
      It seems, that a court of record has power to vacate, correct, or to reform its own order inadvertently made, and to substitute a proper order for an improper one, even though the substituted order may incidentally alter or reverse the advantage or benefit which strangers had gained by reason of the order inadvertently made.
    
    The court of appeals will dismiss an appeal from a judgment afflrming the dismissal of a complaint, in an action not founded upon contract, even though the complaint in such action may demand judgment for more than five hundred dollars, if it is apparent upon tiie face of the complaint, that the matter in controversy is, in fact, less than five hundred dollars. Code OP». Pro. § 191, subd. 3.
    I. April, 1882. Appeal to general term.
    This action was brought by the plaintiff, a corporation, against the defendant, for making, while acting as sheriff of the county of Kings, a false return to an execution issued by plaintiff on a certain money judgment recovered by plaintiff against William Hartung and one Schutt, copartners together, for the sum of $427.86. The judgment in question was docketed in Kings county on April 13, 1880, and execution in the usual form was issued to the defendant sheriff on the same day, commanding him to satisfy the judgment. The sheriff returned “no property found.” The plaintiff thereafter brought this action in the city court against the sheriff, laying its damage in the sum of one thousand dollars, for which sum, besides the costs of the action, judgment was demanded. The sheriff defended, and the case came to trial before the Honorable Joseph Neilsoh, a jury having been waived by the parties.
    On the trial it appeared that on December 15, 1879, one Strasburgher and others had recovered a judgment against Hartung and Schutt, copartners, for $4,467.19 ; on which judgment, execution had, on the same day, been duly issued to the defendant as sheriff. On the same day, but subsequently thereto, one Wynkoop likewise recovered a judgment for $5,967.19 against Hartungand Schutt,copartners, and he dnly caused execution to be issued to the defendant on such judgment. The defendant thereupon levied on the firm’s stock of goods and took the same into possession. On December 20, 1879, the plaintiff, the American Hosiery Company, procured a writ of attachment against the property of Hartung and Schutt, which writ was delivered to the defendant as sheriff of Kings county, who then had property in his custody by virtue of the several writs of execution issued to him on the respective judgments of Strasburgher and Wynkoop.
    On January 21, 1880, an order was entered at the instance of defendant Hartung in the action in which Wynkoop had procured his judgment, vacating such judgment and setting aside the executions as to both defendants. On February 20, following, a further order was entered in the Wynkoop action vacating the order entered January 21, and vacating the judgment as to defendant Hartung only, thus leaving the Wynkoop judgment standing as to Schutt, with leave to Hartung to answer over within twenty days. The second order vacating the judgment as to Hartung provided that the executions and levy stand as security for the plaintiff until after the trial on Hartung’s answer.
    Subsequently the sheriff sold the property of Hartung and Schutt for enough to satisfy the Strasb'arger judgment, and some $2,946.75 more. Hartung did not avail himself of the leave given him to answer over, and on March 10,1880, the order which had been entered on January 21, 1880, vacating the Wynkoop judgment, as to Hartung, was set aside by consent of the attorneys for the respective parties in that case. Thereupon the sheriff immediately applied the proceeds of the sale of the property of Hartung and Schutt, first to the satisfaction of the Strasburgher judgment, and next on account of the Wynkoop judgment to the extent of $2,946.75.
    The plaintiff’s contention in the present action for false return was, in substance, that the order of January 21, 1880, vacating the Wynkoop judgment absolutely as to Hartung, of which order the sheriff had notice, destroyed the lien of that judgment, so that it could not- be revived, and vacated the execution ; and that the sheriff had no authority to thereafter pay the sum of $2,946.75 to Wynkoop, but so much thereof as was necessary was applicable to the plaintiff’s judgment and execution instead of to Wynkoop’s prior judgment.
    From the judgment dismissing the complaint, the plaintiff appealed to the general term of the city court.
    The further facts are stated in the opinion delivered at general term.
    
      S. Jones (Wm. H. Dickinson, attorney), for the plaintiff, appellant.
    I. On January 21, 1880, date of entry of the order vacating the judgment as to Hartung, the lien of Wynkoop by levy was lost, and by operation of law the plaintiff’s attachment took the place of Wynkoop’s judgment on the property in the hands of the sheriff.
    II. Neither the order entered February 2, 1880, nor the order entered March 10, 1880, could take from plaintiff the fund acquired by operation of law on January 21, 1880, because no order can revive process fundus officio (People ex rel. Roberts v. Bowe, 81 N. Y. 43 ; S. C., 8 Abb. N. C. 234; reversing 20 Hun, 85), The order, entered February 2, 1880, could not affect the American Hosiery Company, because it did not consent, and the order was binding only on the parties who consented thereto. Nor did the American Hosiery Co. consent to the order of March 10, 1880, and that is invalid for the same reasons. The sheriff, therefore, must be held to have the fund still in his possession.
    III. There is evidence to show that the Wynkoop judgment was fraudulent, and that the defendant knew it, and colluded to pay it. The sheriff was bound to show the regularity, therefore, of that judgment. The order of January 21,1880, setting it aside, was an adjudication between the parties as to the invalidity of such judgment (Dwight v. St. John, 25 N. Y. 203, cited in 74 N. Y. 370, 378).
    
      Thomas G. Pearsall (Morris & Pearsall, attorneys), for defendant, respondent.
    I. The orders restoring the lien of the Wynkoop judgment were made at special term, and the sheriff had no right to question their regularity ; he was bound to obey the mandate of the executions. He had no right to inquire into the fraudulent character of the judgment. If an execution be regular on its face, it is the sheriff’s duty to execute it, and he may justify for acts done under it without showing the existence of the judgment therein mentioned, even though he has knowledge of facts rendering it void (Crocker on Sheriffs, § 866; Grosvenor v. Hunt, 11 How. Pr. 355 ; Roth v. Schloss, 6 Barb. 308 ; Parmelee v. Hitchcock, 12 Wend. 96; Savacool v. Boughton, 5 Wend. 170; Holmes v. Muncaster, 12 Johns 395).
    II. The motions made by the defendant Hartung were to vacate the Wynkoop judgment as against him, and the order vacating it as to both defendants was irregular, and the court had the power to correct and resettle the order, and even to modify or change the decision (May v. Cooper, 24 Hun, 7; 3 Wail Pr. 754 ; 4 Id. 605, 606).
    
      
       See also Peoples. Hektograph Co., 10 Abb. N. G. 358, and note.
    
   Reynolds, J.

This case turns upon the effect to be given to the various orders made in the action of Wynkoop v. Hartung & Schutt. On December 13, 1879, judgment was entered in the last named action against both defendants, upon consent of an attorney appearing in the name of both, and execution was issued upon the same. Subsequently, defendant Hartung moved, upon an order to show cause, to set' aside the judgment as against himself. This motion was granted, and on January 21,1880, an order was entered upon that decision, setting aside the judgment and execution as to both defendants.

On February 2, another order was entered vacating the former one, and setting aside the judgment as to the defendant Hartung, allowing him 20 days to answer in the action, and directing that the execution and levy stand as security until the trial of the action. March 10, 1880, on consent of the attorneys for defendant Hartung, a further order was entered vacating so much of the last mentioned order as set aside the judgment as to defendant Hartung, and directing that the judgment be “restored as of the date of the entry thereof.” This plaintiff commenced an action against the same defendants, Hartung & Schutt, and sued out an attachment which was delivered to this defendant, as sheriff, on December 20, 1879. Judgment was entered against the defendants in this last named action, April 12, 1880, and on the following day an execution was duly issued to the sheriff, who subsequently returned it unsatisfied. Upon this the sheriff is sued for a false return. Other attachments and executions were delivered to the sheriff, but they need not be specified, as it is conceded that, if the Wynkoop judgment was entitled to share in the proceeds of the sheriff’s sale, according to the date of the issuing of execution thereon, there would be nothing left applicable to the plaintiff’s judgment.

The plaintiff contends that as the order of January 21, set aside the judgment as against both defendants, the lien was entirely gone and could not be restored by any subsequent order, and that thus the attachment in this action was let in to hold a preference over any claim of the plaintiff in that action. But the court had power to correct or reform any order which had been inadvertently made, or to substitute a proper order in place of an improper one. And for the protection of the rights of parties, the order as resettled should take effect as if, first entered. Otherwise a merely clerical mistake might irretrievably throw away what the court intended to protect.

The order in the Wynkoop case, as first entered, went entirely beyond the scope of the motion; the corrected order (properly we think), preserved the judgment as against the defendant not moving, and directed the execution and levy to stand as security. This was subsequently followed up by the order of March 10, as already stated. Whether these last orders were properly made or not, they were in force when the sheriff paid over the proceeds of the sale in accordance with their terms, and we think he is protected by them from any liability as for a false return. This plaintiff might, if so advised, have moved to set aside the Wynkoop judgment as a fraud upon subsequent judgment creditors, but certainly the sheriff could not, as is now suggested, have treated it as fraudulent and void until it was so determined by the court. He could not usurp judicial functions, and of his own motion, set aside, for the benefit of other creditors, a judgment which they had not attacked in court.

For these reasons we think the complaint was properly dismissed, arid that the judgment should be affirmed, with costs.

McCue, J., concurred.

II. 1883. Appeal to court of appeals.

The whole amount of costs for which defendant thus had judgment against plaintiff was $164.65".

From the judgment of affirmance with costs, the plaintiff appealed to the court of appeals, where the sheriff’s counsel duly moved to dismiss the appeal on the ground that the amount in controversy did not exceed $500.

The complaint showed on its face that the sheriff was sued for a false return to an execution issued on April 20, 1880, for $4,27.86 the amount of damage, however, which the plaintiff demanded in the complaint was $1,000.

Thomas S. Pearsall, in support of the motion.— Although judgment is demanded in the complaint for the sum of $1,000, it is apparent on the face of the complaint that the amount in controversy is the damage which the plaintiff would have sustained had the sheriff in fact made a false return. The measure of damage would have been the amount of the judgment on which the execution was based, with interest; this would not equal $500. The appeal should be therefore dismissed in this court (King v. Galvin, 62 N. Y. 238 ; Brown v. Sigourney, 72 Id. 122 ; Roosevelt v. Linkert, 67 Id. 447 ; St. Clair v. Day, 89 Id. 357).

Samuel Jones, opposed.—The judgment being for defendant its appealibility is to be determined under the last clause of subdivision 3, of section 191, of the Code of Civil Procedure.

I. The cases of Brown v. Sigourney, 62 N. Y. 238 ; St. Clair v. Day, 89 Id. 357; Roosevelt v. Linkert, 67 Id. 447; and Pennies. Continental Life Insurance Co., 67 N. Y. 278, were on contract, and fell under the first clause of subdivision 3 of section 191, Code. These cases are therefore inapplicable. In cases arising under tñe last clause of § 191 Code, the law gives the rule for determining the amount of the matter in controversy, viz., “the sum for which the complaint demands judgment.” In order to dismiss this appeal the court must hold the test to be, not as the statute says it must be, the sum demanded, but that sum only, beyond which the court, upon the facts stated in the complaint, deem no recovery can be had.

II. The complaint shows a willful neglect to collect on the execution. It is true the word “ willful” is not used in the complaint, yet the sheriff’s refusal to apply moneys in his hands, taken on attachment, cannot but be willful. The question whether the sheriff’s acts were willful, is one of the questions to be submitted to the court, for final determination. The case is therefore appealable.

The court of appeals, after consideration, dismissed the appeal, with costs. All the judges concurring, excepting Miller, J. (absent). There was no further opinion delivered in the court of appeals.  