
    Lewis M. Smith et al., Respondents, v. Jud Smith, Sheriff, etc., Appellant.
    (Argued February 10, 1875;
    decided February 23, 1875.)
    A sheriff has no authority to make a levy by virtue of an execution after the return day thereof; and where he omits to make a levy during the life of the process by direction of the plaintiff, he is not liable for a failure to collect.
    In an action against a sheriff for a failure to collect an execution, plaintiffs’ complaint alleged a delivery of the execution to defendant on the 5th of January, 1809. The answer alleged that it was handed to, and left with, defendant’s deputy; plaintiffs at the time directing the deputy not to levy until directed, and that it was not delivered in any other manner. No evidence was given on the trial that the execution was delivered at any other or different time. Evidence was given tending to sustain the allegations of the answer, and that plaintiffs' did not direct a levy until after the expiration of sixty days. Held, that a delivery to the deputy was a delivery to sheriff, and the allegation of the complaint as to delivery, was therefore properly assumed on the trial as admitted; that the fact thus established could not be challenged as untrue or varied to affect the merits upon appeal; that if the directions were given as alleged by defendant, he was exonerated from liability; and that a refusal of the court to submit the question to the jury was error.
    
      Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order denying a motion for a new trial, and directing a judgment in favor of plaintiffs, upon a verdict.
    This action was brought against defendant, as sheriff of the county of Chemung, for a failure to collect an execution.
    The complaint alleged, in substance, that, on the fifth day of January, an execution was issued to defendant, as such sheriff, upon a judgment in favor of plaintiffs, against one Jabez R. Ward ; that Ward had property liable to a levy, but that defendant neglected to levy, and, although sixty days have elapsed, has not returned the same. The answer alleged that plaintiffs, at the time of issuing the execution, handed the same to, and left it with, defendant’s deputy, and that the same was not delivered to defendant in any other manner. That, at the time, plaintiffs directed the deputy not to levy, but to hold it without making a levy until they should direct; and that said deputy, in all respects, obeyed their instructions.
    Upon the trial, defendant gave evidence substantiating the answer, and that no directions were given to the deputy to levy until after the expiration of sixty days from the receipt of the execution. That he, thereafter, by direction of plaintiffs, made a levy, but, upon the defendant in the execution contesting the levy, and the plaintiffs refusing to indemnify, he did not sell. Defendant’s counsel requested the court to submit the question as to whether such instructions were given and obeyed to the jury; and to charge, if they found in the affirmative, that defendant was not liable. This the court refused. Defendant’s counsel also requested the court to charge that, if the directions were given and obeyed, the deputy ceased to be the servant of the sheriff and became the agent of plaintiffs, and hence the sheriff was not liable. This the court also refused, and directed a verdict for plaintiffs. To all which rulings defendant’s counsel duly excepted. The jury found a verdict as directed. Exceptions were ordered to be heard at first instance at General Term.
    
      
      J. McGuire for the appellant.
    An actual levy, during the life of the execution* was necessary to enable the sheriff to sell. (Hathaway v. Howell, 54 N. Y., 97,103.) The deputy was the agent or servant of the party, and the sheriff was relieved from responsibility. (Meckles v. Hart, 1 Den., 548; 8 Barb., 514-517; 5 id., 296; 59 id., 93, 99, 102.)
    
      E. H. Benn for the respondents.
    The sheriff was liable for not returning the execution within sixty days from its receipt. (Root v. Wagner, 30 N. Y., 9; Walters v. Sykes, 22 Wend., 567, 568.) Plaintiffs had three years within which to sue. (Code, § 92; Laws 1871, chap. 733, 1693; Johnson v. Burrill, 2 Hill, 238; Butler v. Palmer, 1 id., 325, 334; Dash v. Van Kleek, 7 J. R., 477; McMannis v. Butler, 49 Barb., 177; Waddell v. Elmendorf, 12 id., 583; In re P. E. School, 58 id., 161, 164; Berley v. Rampacker, 5 Duer, 188; Ganson v. City of Buffalo, 1 Keyes, 460, 461.)
   Allen, J.

The plaintiffs aver in their complaint a delivery of the execution to the defendant, then sheriff of the county of Chemung, on the 5th day of January, 1869, and this is not denied in the answer save as the defendant alleges that it was handed to, and left with, his deputy, and that it was not delivered to him, the defendant, in any other manner^ A delivery to the deputy was a delivery to the defendant as sheriff, and the allegations of the complaint were properly assumed upon the trial as admitted by the answer, and the plaintiff rested the case upon the pleadings without other proof. There was no attempt upon the trial to show that the execution was delivered at any other or different time, or that the delivery was not absolute, or to take effect as upon a delivery at any subsequent day. A material fact alleged in the complaint, admitted by the answer and assumed as true upon the trial, cannot be challenged as untrue, or varied so as to affect the merits upon an appeal. The fact thus established and proved by the' record, must be taken as true in every stage of the action. It may be added that there is nothing upon the record before us, or the circumstances proved upon the trial, to cast a doubt upon the truth of the fact that the execution was delivered to the sheriff as alleged.

Evidence was given by the deputy of the sheriff that, by direction of the plaintiffs, he omitted to execute the process, or make a levy upon the chattels of the defendant therein until after the expiration of sixty days from the receipt thereof, and that he then made a levy, by direction of the plaintiffs, but the right to levy being contested by the defendant in the execution, and the plaintiffs refusing to indemnify him, he took no further action and did not proceed to sell the property upon which he had levied. Evidence was given by one of the plaintiffs, by whom the execution was delivered, that he did not remember giving instructions as testified to by the deputy sheriff. An actual levy during the life of the execution was necessary to give the sheriff dominion over the property of the defendant in the execution, or a right to sell the same. This has very recently been adjudged by the Commission of Appeals. (Hathaway v. Howell, 54 N. Y., 97.) It received a very thorough examination, and the reasons for the judgment assigned by Judges Lott and Reynolds are conclusive. One or two reported cases which were supposed by some to have indicated a contrary rule, are shown to be consistent with the rule as then enunciated, and as ' had been before understood. Had the sheriff levied during the life of the process he might have completed its execution by a sale after that time. But he had no authority to levy or commence the execution of the process after the return-day. If the omission to make the levy during the life of the process was by direction" of the plaintiffs, the sheriff was not chargeable with a neglect of duty, and was exonerated from liability. Whether, therefore, the plaintiffs gave the directions, as testified to by the deputy sheriff, was a material fact to be determined by the jury, and the defendant was entitled to have that question submitted with the instructions prayed for, that if the questions should be found in favor of the defendant he would be entitled to a verdict. The defendant was not liable for a neglect or omission of duty by himself or deputy in obedience to the directions, or with the assent or by authority of the plaintiffs. The defendant also asked the judge to instruct the jury that if the plaintiffs gave special directions to the deputy sheriff not to levy, and he obeyed such instructions, he became the agent of the plaintiffs, and the defendant was not liable in the action. The defendant was entitled to this instruction. It is well settled that if a plaintiff in an execution instructs a deputy of the sheriff, to whom it is delivered, to depart from his duty in executing it, the deputy ceases to be the servant of the sheriff and becomes the agent of the party, and the sheriff is not liable for his acts or defaults. (Mickles v. Hart, 1 Den., 548; Gorham v. Gale, 7 Cow., 739.) It was error to refuse to submit the questions of fact to the jury with the instructions asked, and to direct a verdict for the plaintiffs.

The judgment must be reversed and a new trial granted.

All concur; Miller, J., not sitting.

Judgment reversed.  