
    Stephen H. Jackson, Appellant, v. Charles Comisky, a Marshal of the City of New York, Respondent.
    (Supreme Court, Appellate Term,
    February, 1900.)
    Action for an escape — Debtor must be shown to have been in custody.
    A judgment creditor cannot maintain an action for an escape against an officer, holding an execution against the body of the judgment debtor, unless he shows that the debtor was taken into custody by the officer.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the defendant, upon a trial had before the court without a jury.
    The nature of the action and the material facts are stated in the opinion.
    Joseph A. Kent, for appellant.
    William Klingenstein, for respondent.
   Giegerich, J.

The action is to recover damages for an alleged escape. The pleadings were oral, and the answer was a general denial. The plaintiff placed with the defendant, one of the marshals of the city of New York, for collection, an execution against the property of one Morris Finklestein, issued by the Municipal Court of the city of New York upon a judgment rendered in favor of the plaintiff against the latter. Upon the return-of the writ unsatisfied, an execution against the person was delivered to the defendant, which was likewise returned unsatisfied.

But little evidence was introduced upon the trial. The plaintiff, the only witness called, testified that the defendant, after the executions had been intrusted to his care, admitted that he had collected part of the sum due and that “ Mr. Finklestein had got away from him.” He also put in evidence two letters sent to him by the defendant. In one of them, bearing date August 13, 1898, the defendant states that he has consented to accept payment of the execution in weekly instalments of five dollars each; and in the other, dated December 9, 1898, he writes: “I received $8.00 on account, with the understanding that if the balance was not paid in two weeks the same should be returned and body judgment executed. At that time Finkelstein’s wife was confined in bed and through sympathy I entered into this agreement. Finklestein immediately moved and I lost all track of him.”

At the close of the case the defendant moved for a dismissal of the complaint on the grounds (1) that the court had no jurisdiction of the cause, (2) that the plaintiff had failed to establish a cause of action, and (3) that the execution against the person was void. The trial justice dismissed the action, and stated as his reason “ that it nowhere appears that the defendant was ever in the custody of the officers ”; to which the plaintiff noted an exception.

Without passing upon the points urged in support of the first and third grounds of the aforesaid motion, I am of the opinion that the court below was clearly right in making the ruling which is the subject of review upon this appeal. It is an elementary rule, that in order to maintain a charge against an officer for the escape of a prisoner the plaintiff must show that such custodianship did in fact exist. 11 Am. & Eng. Ency. of Law (2d ed.), 261, 268. Viewing the proof in the most favorable light to the plaintiff, I cannot fairly reach any other conclusion than that he has failed to establish this necessary prerequisite to' the maintenance of the action. Entertaining as I do these views, it follows that the judgment should be affirmed, with costs.

Beekman, P. J., and O’Gorman, J., concur.

Judgment affirmed, with costs.  