
    William T. Gagen and Joseph F. Carroll, Copartners Doing Business under the Firm Name and Style of Gagen & Carroll, Appellants, v. Ellis A. Taylor, as Sheriff of Suffolk County, Respondent.
   Judgment reversed upon the law and the facts, with costs, and judgment directed in favor of the plaintiffs for the sum of $594.61, with costs. The record shows conclusively that the sheriff failed to return the execution delivered to him in plaintiffs’ action against Hrabolski within sixty days of its receipt. This is sufficient to cast liability for the amount of the judgment upon the sheriff in the first instance. Under such circumstances the sheriff may show, in mitigation of his liability, that the defendant had not sufficient property out of which the whole or a part of the execution could be collected. This the sheriff made no attempt to do upon the trial, nor could he well do this, for the record discloses that, five days after the execution was issued to him, he returned $555 to the attorney for Hrabolski. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.  