
    Edwin C. Berry, Appellant, v. Henry J. Schaad and Patrick Keogh, Respondents.
    
      jSale under execution of the property of a third person — it is done by a constable by virtue of his office — a judgment against the constable is not necessary before suit is brought by the third person, nor is it evidence against his sureties.
    
    The seizure and sale by a constable, under an execution, of property not belonging to.the defendant in the execution, although in excess of his authority and consequently a trespass, is an act done by virtue of his office, within the meaning of that term, as used in the official bond of the constable by which the latter and his sureties “ undertake and agree, jointly and severally, to pay each and every person for any damages he may sustain from, any act or thing done by said Geo. B. Biddle by virtue of his said office of constable."
    
    
      ■ The recovery of a judgment against the constable for the conversion is not a condition precedent to an action against the sureties upon the bond, and such a judgment is neither conclusive nor prima facie evidence against the sureties of the facts essential to its recovery.
    Appeal by the plaintiff, Edwin C. Berry, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 18th day of July, 1899, granting the defendants’ motion for a new trial made upon the minutes.
    
      Bert B. Farnham, for the appellant.
    
      John Desmond and Abraham Benedict, for the respondents.
   Laughlin, J. :

The action was brought to enforce the liability of the sureties on the official bond of a constable. The complaint was framed, and the action was tried, upon the theory that the liability of the sureties, and the extent thereof, was conclusively established by a prior judgment against the constable for conversion in making a wrongful levy and sale upon an execution.

By the express terms of the bond, the constable and his sureties “jointly and severally agree to pay to each and every person who may be entitled thereto all such sums of money as the said Geo. B. Riddle (the constable) may become liable to pay on account of any execution or Treasurer’s Warrant, or other process which shall be delivered to him for collection.” And “ further undertake and agree, jointly and severally, to pay each and every person for any damages he may sustain from any act or thing done by said Geo. B. Biddle by virtue of his said office of constable.”

The due election of Riddle as constable of the fourteenth ward of the city of Rochester, and the execution of the undertaking by him and the defendants as sureties, were conceded. The undertaking is substantially in the form required by the Town Law (Gen. Laws, chap. 20 [Laws of 1890, chap. 569], § 54), with some additional provisions of local application.

The constable, by virtue of a warrant of attachment, duly issued by the Municipal Court of Rochester, in an action against one Fred P. Russell, attached certain personal property found in, the possession of Russell in said city, and subsequently sold the same on an execution issued in that action. The plaintiff, claiming to own and to be entitled to the possession of the property by virtue of a chattel mortgage, of which the constable had notice, brought an action in the Supreme Court against the constable for conversion and recovered judgment for $103.25 damages and $134.44 costs, in all $240.42, which was duly docketed in the clerk’s office of Monroe county on the 11th day of April, 1898, and from which the defendant therein appealed to this court, where the judgment was affirmed, with costs, which aggregated $122.45, for which judgment was entered on the 11th day of February, 1899. Executions were issued on these judgments and returned unsatisfied,. whereupon the plaintiff, after obtaining leave of the court therefor, brought this action against the sureties and seeks to recover the face of both judgments, with interest and costs.

The former action was not brought upon the bond, and it was conceded that the sureties had no notice thereof. The trial court received the judgments as prima facie evidence against these defendants, but, subsequently, by ruling out evidence offered by the defendants to show that the property converted was not worth the amount of the verdict, in effect held that the judgments were conclusive against the sureties in the absence of fraud or collusion, and accordingly directed a verdict for the plaintiff.

The motion for a new trial was made on the exceptions and on the ground that the verdict was contrary to law. A new trial was properly ordered, but not upon the ground assigned by the learned trial justice. ■ It becomes necessary, therefore, for us to state our views as to the law of the case. The seizure and sale by the constable of the plaintiff’s property on an execution, although in excess of his authority, and consequently a trespass, were by virtue of his office, and were acts for which his sureties are liable. (People v. Schuyler, 4 N. Y. 173; Dennison v. Plumb, 18 Barb. 89; Mayor v. Ryan, 7 Daly, 438; Pond v. Leman, 45 Barb. 152; Rogers v. Weir, 34 N. Y. 463 ; Bishop v. Mosher, 65 Hun, 519; Row v. Sherwood, 6 Johns. 109; Cumming v. Brown, 43 N. Y. 514 ; Lammon v. Feusier, 111 U. S. 17; Tracy v. Goodwin, 5 Allen, 409.) The case of People ex rel. Comstock v. Lucas (93 N. Y. 585) is no obstacle to a recovery here. The liability of the sureties there was limited to such sums as the constable might become liable to pay on account of any execution, and it was held that the liability of the constable for trespass ivas not a liability to pay on account of the execution. We find no general law, and our attention has not been called to any local statute applicable to the city of Rochester, requiring as a condition precedent to enforcing the liability of the surety on the official bond of a constable, that judgment must first be recovered against the principal. The obligation of the sureties is, “ to pay each and every person for any damages he may sustain from any act or thing done by said Geo. B. Riddle by virtue of his said office of constable.” We think the form and terms of the undertaking indicate that the sureties become liable in a direct action by the party aggrieved the moment a breach occurs. (Levin v. Robie, 5 Misc. Rep. 529.) It does not seem just that the sureties should be liable for the costs of a litigation to which they are not parties, when they might have been joined as defendants, or might have been sued in the first instance by the aggrieved party. There is nothing to show that they contracted with a view to becoming bound by a judgment against the constable. (Douglass v. Howland, 24 Wend. 59.) The decisions in other States are not in harmony with one another or with the ruling-s in our jurisdiction on these questions, nor do the text writers agree. The weight of authority in this State applicable to this case, where it was unnecessary to sue the principal first, is, we think, that the judgment is neither conclusive nor prima facie evidence in favor of the plaintiff of the facts which were essential to its recovery, and this is the logic of the situation. (People ex rel. Tuthill v. Russell, 25 Hun, 524; Thomas v. Hubbell, 15 N. Y. 405 ; 35 id. 120; Douglass v. Howland, 24 Wend. 57; followed in Ex parte Young, L. R. [17 Ch. Div.] 668; Miller v. White, 50 N. Y. 137; Cooke v. Odd Fellows' Fraternal Union, 49 Hun, 23, 27.)

The order appealed from should be affirmed, with costs to the appellant to abide the event.

All concurred.

Order affirmed, with costs.  