
    William J. Buttling, as Sheriff of Kings County, Appellant, v. Loftus D. Hatton and Others, Respondents.
    
      Action by a sheriff for an escape—proof that a person stated that he was under sheriff and had discharged the prisoner is incompetent—when the sheriff cannot recover for an escape.
    
    Where, in an action by a sheriff against the sureties on a bail bond for the alleged escape of a prisoner from the jail limits, a question arises as to whether a person in the sheriff’s office who assumed to discharge the prisoner had been appointed deputy sheriff, or, although not regularly appointed, had been authorized by the sheriff to perform the duties of that office, evidence that in a conversation held after the discharge he stated that he was under sheriff and had discharged the prisoner from imprisonment is incompetent.
    Semble, that if he was actually deputy sheriff, or was authorized by the sheriff to act as such, the sheriff could not recover.
    Appeal by the plaintiff, William J. Buttling, as sheriff of Kings county, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 10th day of Hay, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of April,. 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    ■ This appeal was transferred from the first department to the second department.
    
      Hugo Hirsh, for the appellant.
    
      Byram L. Winters, for the respondents.
   Hirschberg, J.:

On the 7th day of December, 1895, an execution against the person of the defendant Loftus D. Hatton was issued to the plaintiff as the sheriff of Kings county. On December sixteenth said defendant gave the plaintiff a bond for the jail liberties, which comprise the entire county, and the defendants Philip Bohner and William Hatton • became sureties with the judgment debtor upon such bond. The bond was in the usual form, conditioned- that the defendant Loftus D. Hatton should not escape or go without the liberties of the jail of the county of Kings as duly established until he should be discharged by due course of law.

The action was on this bond on the allegation that the defendant Loftus D. Hatton did escape on the 24th day of March, 1896; and the defense litigated was that such escape was voluntary1 and the result of the discharge of the said defendant "by the plaintiff from confinement within the jail limits on the 16th day of March, 1896. On the trial Hatton testified that on the 16th day of March, 1896, he went to the sheriff’s office, where he saw Mr. Kobert B. Sedgwick, and that he asked Mr. Sedgwick if his time was up; that Mr. Sedgwick examined some of the books in the office, and then said to him in substance : “ What * * * are you doing here now ? Why ain’t you in New York ? — your time is up ; ” that he replied.: “ I haven’t heard from my lawyer,” to which Sedgwick responded : “Go to New York and attend to your business.” This evidence was undisputed, and it necessarily follows that if Mr. Sedgwick then had authority to speak and act for the plaintiff in the premises, there could be no recovery upon the bond.

It appears that Sedgwick was the under sheriff of Kings county at the time of Hatton’s arrest. Lewis K. Worth had been under sheriff, blit he resigned the position on December 3,1895, and Sedgwick was appointed the next day, December fourth, and at once qualified by taking and filing the oath of office. The plaintiff testified that Worth’s resignation and Sedgwick’s appointment in his place were only intended to be temporary, and to cover the period of Mr. Worth’s absence abroad. He further testified that Worth returned in January, 1896, whereupon Sedgwick tendered his written resignation of the office of under sheriff, but remained! in the sheriff’s office as chief executive clerk, and that the plaintiff on-receiving such resignation did, on January 23, 1896, reappoint Worth under sheriff, by an instrument in evidence signed and sealed, on that day. The- prior resignation of Worth was preserved and read in evidence, but Sedgwick’s resignation the plaintiff testified he had destroyed. Worth’s reappointment was not filed until May 29, 1896, and he did not take the oath of office until June 10, 1896.

The statute (Laws of 1892, chap. 686, §§ 181, 182) provides that ' “ Every appointment of an under-sheriff or of a deputy sheriff shall be in writing under the hand and seal of the sheriff and filed and recorded in the office of the clerk of the county; and every such under-sheriff or deputy sheriff shall, before he enters upon the execution of the duties of his office, take .the constitutional oath of office.” It follows, therefore, according to the plaintiff’s story, that he had no under sheriff qualified to discharge the duties of the office on March 16, 1896, when Sedgwick told Hatton to leave the jail limits, unless Sedgwick continued to perform those duties by an understanding, either express or tacit, which was to continue until Worth should duly qualify. Under these circumstances the learned trial justice very properly submitted to the jury the question of Sedgwick’s official status at the time of the escape, instructing them in substance that the defendants were entitled to a verdict in case' they found either that Sedgwick was in fact under sheriff, or, not being under sheriff, was still vested by the plaintiff with authority to act as such. It is impossible to tell which conclusion the jury reached, but there was evidence to justify either, and but for the improper admission of evidence of Sedgwick’s declarations as to his position in the sheriff’s office, the judgment should not be disturbed.

Mr. Baker, the attorney for one of the defendants, testified to a conversation with Sedgwick in the afternoon of March 16,1896.-This was after the discharge, and is no part of the res gestee. It was not in the course of the transaction of any business incident to the position or connected with the duties of under sheriff. In this conversation Mr. Baker testified that Mr. Sedgwick told him that he was under sheriff and had charge of all the business. He further testified that Sedgwick said he had discharged Hatton from imprisonment, telling him to go where he pleased. All this conversation was received subjeetto the plaintiff’s objection and exception. Sedgwick was in the court house at the time of the trial, but neither side called him. He would of course have been a competent witness to prove the scope and extent of the authority conferred upon him by the plaintiff, but his declarations were not competent evidence for that purpose. (2 Greenl. Ev. § 63 ; 1 Rice Ev. 445 et segi) “ It may be laid down as a general principle that the declarations of a person assuming to act as the agent of another are not admissible in evidence to prove his agency.” (1 Am. & Eng. Ency. of Law [2d ed.], 690, and cases cited.) It is true it was within the defendants’ rights to prove that Sedgwick assumed to act as under sheriff, but in default of his testimony such proof could only be furnished by acts performed as under sheriff, and declarations so connected with and accompanying them as to make them a part of the res gestee of'the acts. But upon the question whether a party has authority to do an act as the agent of another, evidence of the fact that he assumed to do the act cannot be made use of as evidence that the power so assumed actually existed. (Reynolds v. Continental Ins. Co., 36 Mich. 131.)

Under the charge the jury may have decided that Sedgwick was in fact the under sheriff, and this conclusion would be natural and irresistible in view of his undisputed declaration to that effect. Without proof of the admission they might not conclude that he was either under sheriff or acting as such by authority. The error, therefore, compels a new trial.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  