
    LOUISE DOUAI WEHLE, Plaintiff and Respondent, v. WILLIAM C. CONNOR, Sheriff, Defendant and Appellant.
    I. AMENDMENT TO ANSWER—BY SETTING UP MATTER ALLEGED TO CONSTITUTE A FURTHER DEFENSE.
    
      Í. Motion fob—What may be considered upon.
    1. Whether the'matter constitutes a defense or counterclaim.
    
    
      a. If it does not, the motion may be denied, and the order of denial will not be reversed on appeal.
    II. SHERIFF.
    1. Execution, non-bettlrn of, action fob.
    1. What will not constitute a defense.
    
    
      a. The facts; that warrants of attachment had been issued to, and were then held by the sheriff against the property of the judgment creditor: "that he had served copies thereof on tho judgment debtor, with a notice that, lie levied upon and attached all goods, chattels, and credits in his hands belonging to the judgment creditor, and upon all dei>ts due the judgment creditor from the judgment debtor, and that he had received from the judgment debtor a certificate under the warrant that he was indebted to the judgment creditor in tho amount of the judgment, and that such judgment remained in full force and effect; will not constitu'e a defense.
    
    1. Excuse fob sheriff.—Semble —If the court sees fit to stay the proceedings or to direct that the money be retained in the sheriff’s hands after he had collected tbe amount out of the property attached, or to order it to be paid into court, an excuse may arise for a sheriff omitting to execute and return the execution.
    
    
      Before Curtis and Sedgwick, JJ.
    
      Decided August 3, 1875.
    Appeal from an order denying defendant’s motion for leave to interpose the portion of the proposed emended answer entitled “second defense,” on the-ground that such portion does not constitute a defense.
    The action is brought against the sheriff to recover damages for the non-return of three executions in favor of the plaintiff. More than twenty days after answering, the sheriff moved for leave to amend bis answer, and set up a second defense. This motion was denied on the ground that the proposed amendment tailed in. constitute any defense or counter-claim, and the defendant appealed. The proposed “ second defense ” of the amended answer, which is disallowed by the order-appealed from, alleges that the execution debtors in an action commenced by them against this plaintiff, and other parties in two several actions commenced by them against this plaintiff, on November 19, 1874 (six weeks'after the issuing of executions), caused warrants of attachment under the Code to be issued against the property of the plaintiff in this action to the defendant,, as such sheriff, copies of which the defendant alleges were served upon the judgment debtors, with a notice-endorsed thereon, that he levied upon and attached ah? goods, chattels, and credits in their hands belonging to s lid plaintiff, and upon all debts due her from them, and that said sheriff “thereafter” received from them, a certificate under each warrant, showing that they were indebted to the plaintiff in the amount of the three judgments, upon which he had the executions, and that said judgments, and each of them, then remained in full force and effect.
    
      Brown, Hall & Vanderpoels attorneys, and Almori 
      
      Goodwin and A. J. Vanderpoel, of counsel for appellant, urged:
    I. The attachments received by the sheriff against the property of the plaintiff, and served by him upon the judgment debtors, were properly served, and became thereby a lien upon all moneys ■collected, or to be collected by the sheriff upon the .judgments, and are pro tanto a defense to this action. (!) a. It is not necessary to question the proposition that when a sheriff receives money in payment of an •execution in favor of a judgment creditor, he can not levy on the money so in his hands on an execution :against such creditor. That is the rule as laid down in Turner v. Fendall (1 Cranch, 41); Baker v. Kenworth (41 N. Y. 215), and other cases cited by the plaintiff in •the argument below. Those cases hold that money in the hands of the sheriff, under such circumstances, is :not the property of the plaintiff, and his interest in it is merely a chose in action. Under an execution, choses -in action are not subject to levy (Ingalls v. Lord, 1 Cowen, 240; Ransom v. Miner, 3 Sandf. 692). b. The case at bar is distinguishable from all the cases relied .upon as supporting the plaintiff’s position, in the fact that the processes issued to the’ sheriff against the judgement creditor, and under which he seeks to defend, are -warrants of attachment. Under attachments, choses in ■action may be levied upon in the manner prescribed by the Code, and as was actually done in the present case (Code, §§232, 234, and235). c. The proposed defense sets up, not that the sheriff has undertaken to attach moneys in his own hands, but debts due to the party against whom the attachments are issued, and there ■.can be no question that under the certificates set forth an the answer such attachments have acquired a perfect lien as against the parties giving the certificate. (2) a. There is another very marked distinction also to be ^considered. The reasoning of the court in Turner v. Fendall (supra, p. 48), upon which all the later cases depend is, that “the sheriff, not having brought the money into court, but having levied an execution while in his hands, has not sufficiently justified the non-payment of it to the creditor; ” and further, that “if the payment of damages should be against equity, that was not a subject for the consideration of the court of law which rendered the judgment.” The principle of these decisions, we submit, is that it is not the duty, nor is it the privilege, of the sheriff to decide upon the equities or rights of the parties in such cases, b. Now, where an execution against the judgment creditor is in the hands of the sheriff at the same time that he has money in his hands, made on an execution in favor of such creditor, the rights of all the parties may be properly determined under the provisions of § 294 of the Code (Baker v. Kenworthy, 41 N. Y. 215). c. But under an attachment the sheriff1*is not called upon nor has he any right to turn over what has been paid or realized upon an attachment. The command of the writ is “to attach and safely keep ” sufficient property of the defendant until the further order of the court, by judgment or otherwise. The plaintiff issuing the attachment can take no step under section 294 of the Code until judgment has been obtained, and is left without an)’ remedy whatever, unless the lien of his attachment is preserved.
    II. W hile 'prima facie the measure of damages in an action for non-return is the amount of the execution, this may be reduced by showing that the judgment debtor had no property out of which the execution could have been made, or by showing that the interest of the plaintiff1 in the execution is less than the face thereof. (1) Anything which attacks the judgment or the plaintiff’s interest in it is a defense to the sheriff in such cases, e. g., that the plaintiff has heretofore assigned the judgment. (2) In the present case the law has stepped in and made an assignment of the plaintiff’s interest in these judgments to the extent of these attachments, the amount of which is at present undetermined—an assignment subject, of course, to bo set aside by the ultimate defeat of the plaintiffs in those attachments. (3) The cases in which it is said that the only defense the sheriff can set up in an action for non-return is that the judgment debtor has no property, viz., Ledyard v. Jones (7 N. Y. 550); Bowman v. Cornell (39 Barb. 69), are cases in which there was no dispute as to the validity or amount of the judg- . ments or of the executions issued upon them,
    III. Under the Code, a partial defense may be pleaded, such as facts in mitigation of damages, part payment, etc., and the proposed defense comes within this class (Bush v. Prosser, 11 N. Y. 347; Loosey v. Orser, 4 Bosw. 391; Foland v. Johnson, 16 Abb. 285; Hynd v. Griswold, 4 How. 69 ; Williams v. Hayes, 5 Id. 470 ; Houghton v. Townsend, 8 Id. 441).
    IV. If the right of the defendant to interpose the proposed defense in this case be doubtful, it should be allowed, so that the question may be properly disposed of by the court of appeals, and that cannot be properly done under an appeal from this order.
    
      Charles Wehle, attorney and of counsel for respondent, urged:
    I. As between the sheriff and the execution debtor there was nothing due from the latter to the plaintiff in this action if the sheriff had made the levy required by law. If however, he failed to make the levy, it is his own negligence, which caused damage to the plaintiff, and hence it can not be pleaded by him as a defense.
    II. If the sheriff had done his duty by making the levy immediately upon the receipt of the execution, the title to the property levied upon by him, or tho proceeds of its sale (if sold), would have immediately vested in the plaintiff, and the service of the attachmenfc, issued six weeks afterwards, could not have affected her title to that property or money ; hence the proposed second defense is founded upon the theory that the sheriff has failed to do his duty, and the court was correct in excluding it (Roth v. Wells, 29 N. Y. 489; Swezey v. Lott, 21 Id, 481; Hewland v. Willets, 9 Id. 173. See also Hathaway v. Howell, 54 Id. 97).
    III. A result of the levy of an execution upon property is, that when once taken by a sheriff or other officer, who is the bailee of the law, property is then in custodia leg is., and can not be interfered with by a private person, or by another officer acting under the authority of a different court or jurisdiction. They are in the custody of the law until the proper time for their sale, and for a reasonable time thereafter. During this time they are beyond the reach of seizure by any other execution, attachment or other writ, even for taxes, though they remain in the possession of the very party who is liable to pay taxes. The possession of the officer is the possession of the court by whose command that officer seizes them, and that possession can not be interfered with by any other court (Van Loane v. Kline, 10 Johns. 135 ; Hartwell v. Biswell, 17 Id. 128 ; Dubois v. Hartcoart, 20 Wend. 41 ; Pullian v. Osborne, 17 How. [U. S.] 471 ; Freeman v. How, 24 Id. 450; Herman on Ex. § 173). Hence the proposed defense is irrelevant, and was rightly overruled and excluded.
    IV. Money collected on execution not being liable to levy, an officer, who applies such money in satisfaction of an execution in favor of a creditor of the execution plaintiff, is liable for the same to such execution plaintiff. If the sheriff has collected the money on these executions, such money does not become the goods and chattels of the plaintiff until paid out to her, and while it remains in the hands of the sheriff he could not apply it to the satisfaction of another execu- . tion against the former plaintiff, and consequently it can not be attached under the Code, as the attachment is merely a security for the execution to be issued upon the judgments (Baker v. Kenworthy, 41 N. Y. 215 ; Muscott v. Woodwarth, 14 How. 477 ; Carroll v. Cone, 40 Barb. 220 ; Code, §§ 232 and 237).
    Y. There is no excuse shown in the excluded portion of the answer why the sheriff has not returned the execution within the time required by law ; no inability to collect, or insolvency of the defendants in the execution is averred, nor can it be pretended that the attachments operated as a stay (Crocker on Sheriffs, § 442 ; Code, § 290 ; 2 R. S. Elm. Ed. 458; Code, § 149 Swezey v. Lott, 21 N. Y. 481 ; Bowman v. Cornell, 39 Bard. 69 ; Humphrey v. Hathorn, 24 Id. 278 ; Ledyard v. Jones, 7 N. Y. 550).
    VI. Assuming the warrants of attachments to have been issued and levied in-good1 faith, yet if the sheriff had made return of the executions within the time required by law, the plaintiff in this action, by bonding-the attachments at any time after appearance, would have been entitled to receive the money made on the-executions, which can not be done now by reason of the sheriff’s failure to return (see Code, §§ 240, 241 ; Hathaway v. Howell, 54 N. Y. 97).
   By the Court.—Curtis, J.

The following provision of the statute points ont concisely and clearly the duty of a sheriff in regard to the execution of process. and Ms liability for its violation :

“Every sheriff or other officer, to whom any process shall be delivered, shall execute the same according to the command thereof, and shall make due return of his proceedings thereon, which return shall be signed by him. For any violation of this provision, such sheriff or other officer shall be liable to an action at the suit of the party aggrieved, for the damages sus tained by him, in addition to any other tine, punishment, or proceedings, which may be authorized by law” (2 R. S. 440, §77).

By this statute an action is given to the creditor against the sheriff for not returning the execution. By this omission it is settled, that the sheriff becomes-liable for the debt, unless he shows some sufficient reason, but he may show in mitigation "of damages,, that the defendant had no property on which the-execution could be levied (Swezey v. Lott, 21 N. Y. 484).

It is to be considered whether the proposed defense is a sufficient excuse for the sheriff.. It is the duty of the sheriff with an execution to execute the process in the most effectual manner. Asan agent he is bound to proceed with that degree of diligence which persons of common prudence are accustomed to use about their own business and affairs (Tomlinson v. Rowe, Hill & Den. Sup. 410). There is no reason assigned by the-sheriff for delaying a levy under the executions for forty-two days after he received them. As an excuse for his subsequent omission to levy and return them, he sets up the warrants of attachment then issued. The law looks with disfavor upon delays and want of good faith on the part of officers charged with the execution of process.

The. provision of the statute above cited, is but the affirmance and amplification of the rule as to their liability that had grown up at common law. But supposing it to be the case that these attachments had not originated directly or collusively from the execution debtors, but that they were issued while the sheriff was proceeding to levy unipr the executions, with the ordinary diligence of a man engaged in collecting his own debt, would they furnish a sufficient reason why the sheriff should desist from proceeding further with the executions.

It is clear that the goods of those defendants, as against themselves, were bound from the time of the--delivery of the executions to the sheriff to be executed (2 R. S. 365, § 13; Roth v. Wills, 29 N. Y. 489). The law does not contemplate that the execution debtors •ran discharge this lien of the executions by suing out a warrant of attachment against their execution creditors, or that the sheriff is not to proceed under the executions because attachments may come into liis hands and be levied on the debts due to the execution •creditors. The duty of the sheriff is to proceed and make the money under the executions. There is no reason why he should not, and on the other hand his •delay or his omission to proceed might lead to the loss of an opportunity to collect the debt from the execution debtor, and deprive both the execution creditors .and the attaching creditors of any remedy.

The .sheriff is simply the officer of the court charged with the execution of its process, and it is no part of his office to exercise a judicial discretion as to when, and under what circumstances, he will or will not execute it and make his return. Whether the attachments in the present case were properly issued or not, it was his duty to lev)7 under the executions, and to vollect them if possible, and pay to the plaintiff the amount, unless the court saw tit to stay the proceedings. or to direct that the money be retained in the sheriff’s hands after he had collected the amount out of the property attached, or to order that it be paid into court. In some such way, an excuse may arise, for a sheriff omitting to comply with the provisions •of the statute, but it is difficult to see how a sufficient excuse can arise from his undertaking, unauthorized!/ .and upon his own discretion, not to execute process (Paige v. Willett, 39 N. Y. 34, 35).

The order appealed from should be affirmed, with ¿costs.

Sedgwick, J., concurred.  