
    Barney Dickinson, as Sheriff of Delaware County, Respondent, v. William C. Oliver, Appellant.
    Third Department,
    May 2, 1906.
    Sheriff may maintain action for conversion, against one who takes property under levy — sheriff’s successor may be substituted as party plaintiff---.such substitution not necessary, ' ,
    While there is no- statute requiring or authorizing a sheriff to bring action against one who unlawfully takes-from his. possession chattels levied up on under lawful process, he may maintain such .action under the common law. ,
    Such an action for conversion brought by a sheriff does not abate at his death, but by virtue of section 766 of the Code of Civil Procedure may be continued .by his successor in office. ' ;
    In any event -a consent by the defendant that the successor of such deceased sheriff he substituted as plaintiff precludes the defendant from thereafter asserting that the successor was not a proper .party. ,
    Such sheriff substituted 'as a party may continue the action in his own name, although- -his term of office has expired and his successor has been appointed."
    Appeal by the defendant, William C. Oliver, from an-- .order' of the Supreme Court, made at the Broome Special Term and entered in the office of the clérk of the county of Delaware on the 13th day of November, 1905, granting the plaintiff’s motion for a hew. trial of the action.
    This action Was- originally commenced by Le Roy Smith, then sheriff of Delaware county, for an alleged conversion- by the defendant of property upon which an execution had been levied. The action was twice tried during the lifetime of Smith. On the first trial the jury disagreed, and on the second trial a verdicf for the defendant was rendered. Smith died in March, 1903, while he was still holding the office of sheriff. Barney Dickinson, the present plaintiff, who was the under sheriff of Smith and who had charge, of the execution in question, was appointed sheriff of Delaware county as successor of Smith on April 1, 1903, and on the fourth day of April thereafter an order was made substituting Dickinson as sheriff as plaintiff in the place and stead of Smith, deceaséd, and directing that the action be continued in the name of Dickinson, as sheriff, as plaintiff therein. This order was made upon the application of Dickinson and upon the written stipulation of the attorneys for the defendant. Thereafter the substituted plaintiff appealed from the judgment entered upon the verdict for the defendant and the judgment was reversed' and a new trial granted. (96 App. Div. 65.) Dickinson’s term of office of sheriff expired December 31, 1903. Since that time William B. Kilpatrick has been and^ still is sheriff. After Dickinson’s term of office had- expired such appeal was brought on for argument in the Appellate Division and heard and decided without any objection on the part of the defendant that he was not the proper party plaintiff. The action was again brought on for trial in May, 1905, and the trial court granted the defendant’s motion to dismiss the complaint on the grounds, among others, that the cause of action had abated by_ Smith’s death, that Dickinson, as sheriff, could not maintain .the action, his term of office having expired, 'and that the complaint' does not state a cause of action in his favor. The court afterwards granted the plaintiff’s motion for a new trial made upon a case and exceptions, and from that order the defendant has appealed.
    
      G. L. Andrus, for the appellant.
    
      Wagner c& Fisher, for the respondent.
   Chester, J.:

We agree with the learned justice of the Special Term that the defendant, having stipulated that Dickinson, as sheriff, be substituted as the party plaintiff in the action and an order having thereupon been made making such substitution and directing that the action, be continued in his name as' plaintiff, the- defendant cannot now be-hearjl to say that Dickinson,'as sheriff, is not the proper plaintiff. That order, standing in full force as it does, is conclusive upon- that question.' (Underhill v. Crawford, 29 Barb. 664; Smith v. Zalinski, 94 N. Y. 519 ; Gibson v. National Park Bank of N. Y., 98 id. 87 ; Greenwood v. Marvin, 111 id. 423, 440.)

¡But we may go further than this, as we think that the substitution- of Dickinson- as plaintiff was a proper one to be made and that the action may be continued in his name although his term of office has expired. The sheriff of a county is a public officer, and from. -time immemorial lie has' represented the .executive power of the State within his county and executed the process of the courts.. These functions come within the scope of-his official' duty. '

Section 766 of the Code of Civil Procedure provides as follows: “ Where an action or special proceeding is authorized or directed by law, to be brought by or in the name of a public officer, or by a receiver, or other trustee, appointed by virtue' of a statute, his death or removal does not abate the action or special proceeding; but the same may be continued' by his successor, who must, upon his appli-' cation, or that of a party interested, be substituted for that .purpose, by the order of the court, a copy of which must be annexed to the judgment-roll.” While there is no statutory authority requiring ór authorizing a sheriff to commence an action against a person who unlawfully takes from his possession chattels levied upon under lawful process, yet it is apparent that such an action was authorized by the common law. "

■ In 25 American and English Encyclopaedia of Law '(2d ed. p¿ 713) it is said: “ The duty on the part of the sheriff or constable to protect the property in his possession, and have it forthcoming,’con-, fers on him a special interest ór property therein, and he may maintain the necessary actions to protect his special interest, such as replevin, trespass, or trover.” '

In Crocker on Sheriffs (3d ed?§ 826) it is said.: “When goods and chattels have been duly levied on" or attached by an officer, under valid process against the owner thereof, ór against one having’ an interest therein subject to levy under execution, ór seizure under ‘attachment, theofficer holding such process thereby acquires a'special property in .such goods and chattels so levied on or attached, and may maintain an action against any one who interferes therewith, or injures them, or removes" them, or converts them to his own use.” The author cites in support of this proposition, among others, the cases of Barker v. Miller (6 Johns. 195); Lockwood v. Bull (1 Cow. 322); Earl v. Camp (16 Wend. 561); Dezell v. Odell (3 Hill, 215).

On the death of Smith, therefore, the action did- not abate, and Dickinson, having been appointed successor of Smith on the latter’s death,.it was entirely proper, under these authorities, for the court to substitute him as plaintiff in the case.' It is true that Dickinson’s term of office as sheriff has expired and that now there is a new incumbent in the office. There may be a ground to ask the court for a further substitution, but as subdivision 4 of section 184 of the Code of Civil Procedure authorizes a sheriff whose term of office has expired to close up all mandates that he has begun to execute, that would hardly seem necessary in this case. This provision is but continuing a rule of the common law, that the sheriff who began an execution was required to end it, though his office had expired. (Mod. Cas. [6 Mod. Rep.] 297; Clerk v. Withers, 1 Salk. 323; 2 Ld. Raym. 1074. See, also, Code Civ. Proc. § 186.) More'than this, it often happens that where an action is brought by one public officer it is allowed to be continued in his name after a successor has been appointed or elected. (Manchester v. Herrington, 10 N. Y. 164; Board of Excise of Ontario County v. Garlinghouse, 45 id. 249; Griggs v. Griggs, 56 id. 504.)

That a sheriff’s right to the exclusive possession of property levied upon is not impaired by his.going out of office, nor his powers and duties in relation thereto in any manner changed, is expressly held in Rogers v. Darnaby (4 B. Mon. [K.] 238, 241).

If an action brought by a public officer were' to abate upon the expiration of his term of office, all that would be required on the part of a defendant in order to escape liability would be to delay final judgment until the term of office of the plaintiff had expired. We think the authorities are ample to prevent that result in this case. The order appealed from should be affirmed, with costs.

All concurred, except Parker, P. J., not voting.

Order affirmed, with costs.  