
    William Brown v. William B. Jones.
    The provisions of 2 Revised Statutes, 253, seo. 159 — giving the party, in whose favor an execution is issued, an action of debt against tho constable reeeiving'it, who fails to return it within five days after the roturn day, and in which action id is provided that the recovery shall be tho amount of the execution with inte rest — do not apply to process issued out of the Marine or justices’ courts of the city of New York.
    When a constable fails to'return ail execution issued out of the Marine Court, that court may compel its return by attachment, or the party in whose favor it is issued may bring an action against the constable for his neglect, and in which a recovery may be had to the extent of tho damages proven to have been sustained by reason of the default of the officer.
    T!^. decisions of the Marine Court upon questions respecting its practico, and not affecting the merits of an action, are not the subject of review in this court.
    Answering in bar to tho action waives ail matter which might be set up in abatement.
    Appeal by defendant from a judgment of tbe Marine Court. This was an action brought against tbe defendant, who is a constable of tho city of New York, under the following provision of the Bovised Statutes.
    “If a constable neglect to return an execution within five day's after tbe return day thereof, the party, in whose favor it kvas issued, may maintain an action of debt against such constable, and shall recover therein tbe amount of the execution, with interest, from the time of the rendition of tho judgment upon which the same was issued.” 2 B. S. (4th ed.), p. 449, sec. 142 ; margin p. 253, sec. 159.
    The summons was for a money demand on contract. The complaint averred that William Brown, the plaintiff, recovered a judgment against Peter Larkin and Edward Donaghan for $269.39, and that an execution was issued thereon to the defendant as constable, which he had failed to return within five days from its return day, and demanded judgment for the amount of the original judgment under tho statute cited above. On the return of tbe summons, tbe defendant moved to dismiss the complaint because of variation from tbe summons. Tbe motion was denied.
    Upon tbe trial tbe plaintiff produced tbe record of tbe judgment in favor of bimself, and against Larkin and Donagban, and tbe defendant admitted that be bad received an execution tbereon, wbicb bad not been returned. It was proved also that be bad paid tbe plaintiff $95 on tbe execution. Tbe court rendered judgment for tbe amount of tbe original judgment and interest, deducting this payment, and tbe defendant appealed.
    
      II. V. Vuliee, for tbe appellant.
    
      Frederick Fice, for tbe respondent.
   INGRAHAM, First Judge. —

The objection to tbe summons is not one that can be made available in tbis court. Tbat objection was made in tbe court below upon a motion to dismiss tbe summons, for a variance between it and complaint. That was a mere question of practice in tbat court, tbe decision of which is not a subject of review here. If the defendant wished to present tbe matter before tbis court on appeal, it could only be by setting it up in tbe answer in abatement of the suit.

Even if such bad been done in the court below, tbe defendant waived bis right to review it on appeal, by answering in bar. We have repeatedly so held, and it is now the settled practice of this court on appeal. 1 E. D. Smith Rep. 412, 615.

Tbis action was to recover from tbe constable tbe amount of an execution delivered to him to be executed, on the ground tbat he neglected to return it within five days after tbe return day, under tbe provisions of tbe 159th section of title 4, chapter 2, part 3, of R. S. 2 R. S. 253.

These provisions of tbe Revised Statutes are not applicable to the courts in tbis city. By the 231st section of tbe same title, it is provided tbat tbis title shall not be considered as applicable to the courts in tbe city of New York. I know of no provision of law wbicb at any time since has made them applicable, and tbe counsel for the plaintiff has not referred to .any'as furnishing any authority upon which such a ruling, as is necessary to sustain the judgment, can be upheld.

The provisions cf law, relating to executions out of the Marine Court, may be found in the 99th section of the act to reduce the laws relating to the city of New York, &c. (2 R. L. [1813], p. 370), made applicable to the Marine Court by section 135 of the same act. These sections provide a penalty against the officer for not levying within five clays after receiving the execution, or in fifteen days after levy, for not paying into the court the damages and costs so levied, to the amount of such execution. No provision is made in this statute of any penalty for not returning the execution as in the justice’s court statute before referred to.

.^is the complaint in this case avers no other default, on the part of the defendant, than not returning the execution, and claims to recover only for the penalty imposed under the provisions of the Revised Statutes (which do not apply to the Marino Court), I do not see how the judgment can be sustained.

Even if we were to disregard the pleadings, we could not sustain the judgment upon the evidence. There is no proof of any default on the part of the officer, except for not returning the process. It does not appear that he did not levy, nor that he ever received any money which he ought to have paid over. ‘Without proof of some default, such as the statute designates, the plaintiff could not recover. The plaintiff is not without remedy against an office)’, in the Marine Court, for not returning an execution. That court may compel the return by attachment, under its present organization and powers; ox tbe plaintiff may bring an action on tbe case for not returning the execution, but, in snob a case, be does not recover tbe amount of tbe execution, but such damages as he bas sustained in consequence of tbe default of the officer. Buck v. Campbell, 15 John. R. 456. Such damages must be proven, and where, as in this case, part of the amount was paid afterwards by the officer to the plaintifí; he could not claim, as damages, the whole amount of the judgment.

Judgment reversed.  