
    PATRICK S. BOYLAN, Appellant, v. FRANCIS S. HODGKINSON and HENRY S. HOLLINGSWORTH, Respondents.
    
      Action against an under sheriff to recover surplus moneys arising under a sale in foreclosure — what allegations the complaint should contain.
    
    Appeal from a judgment sustaining a demurrer to the plaintiff’s complaint, which alleged that, in January, 1882, the defendant Hodgkinson was appointed under sheriff of the county of Kings and entered upon the discharge of his duties; that the plaintiff was the owner of a one-fifth interest in certain property in the city of Brooklyn, subject to a mortgage of $6,000 thereon; that the mortgage was foreclosed and the property sold and the money due on the mortgage was paid, and the surplus arising on the said sale, after payment of the mortgage, amounting to $3,400, went into the hands of the defendant Hodgkinson, as such under sheriff; that one-fifth of such sum, amounting to $680, belonged to the plaintiff; that prior to the commencement of this action the plaintiff had demanded the money from the defendant Hodgkinson; the complaint demanded judgment against Hodgkinson and his bondsmen for that sum, with interest.
    
      Held, that the judgment should be affirmed; that the complaint was plainly insufficient, as it did not allege that the under sheriff failed to pay over the money arising from the sale to the sheriff, or that the surplus, after the payment of the mortgage, was not brought into court and deposited as the statute directs; that the payment of the surplus, or any portion of it, to the plaintiff would have been a clear violation of the statute and of the official duty of the defendant.
    
      Appeal from an. order sustaining a demurrer interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action ; and from the judgment entered thereon in the office of the clerk of Kings county on April 28, 1888.
    The complaint showed that the defendant Hollingsworth signed a bond as surety, in which Stegman, the sheriff, was the obligee, and the under sheriff, the defendant Hodgkinson, was the principal.
    
      A. M. (& G. Ocvrd, for the appellant.
    
      Fernando /SoUnger, for Henry S. Hollingsworth, respondents.
   Dykman, J.:

This is an appeal from a judgment sustaining a demurrer to the complaint of the plaintiff, which alleges that in January, 1882, the defendant Hodgkinson was appointed under-sheriff of the county of Kings, and entered upon the discharge of his duties after the execution and filing of his bond for the faithful performance of his duties as such under sheriff. It was then alleged that the plaintiff was a nephew of Patrick Boylan, deceased, who left property in the city of Brooklyn consisting of three houses and one lot; and that by the last will and testament of Patrick Boylan the plaintiff was the owner of a one-fifth interest in such property, subject to a mortgage of $6,000 thereon; that subsequent to the death of Patrick Boylan the mortgage upon said property was foreclosed, and the property was sold in October, 1884, and the money due on the mortgage was paid, and that the surplus arising on such sale after the payment of the mortgage was $3,400, which went into the hands of the defendant Hodgkinson as such under sheriff; that one-fifth of such sum, amounting to $680, belonged to the plaintiff; that prior to the commencement of this action the sheriff assigned to the plaintiff all his title and interest in the bond of his under sheriff to the extent of the moneys received by Hodgkinson as under sheriff from the proceeds of the sale under the mortgage already mentioned; that the plaintiff had demanded the money from the defendant Hodgkinson, and demanded judgment against him on his bondsmen for the sum of $680, with interest. The defendant demurred to the complaint because there was a defect of parties plaintiff, and because the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained by tbe court, and tbe plaintiff appeals.

Our view is that tbe complaint is plainly insufficient. There is no allegation that tbe under-sberiff failed to pay over tbe money arising from tbe sale to tbe sheriff, or that tbe surplus after the payment of tbe mortgage was not brought into court and deposited as tbe statute directs. Tbe payment of tbe surplus, or any portion of it, to tbe plaintiff would have been a clear violation of tbe statutes, and of tbe official duty of tbe defendant. Tbe Code provides tbe disposition to be made of surplus moneys, and the complaint contains no allegation of a failure to comply with its provisions.

Judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Order sustaining a demurrer to complaint affirmed, with costs.  