
    Patrick Feerick, Appellant, against William C. Conner, as Late Sheriff of the City and County of New York, Respondent.
    (Decided March 7th, 1881.)
    Although the term of office of a sheriff has expired, and he has turned over to the incoming sheriff the jail and the prisoners actually confined within its walls, he is not liable to an action for a failure to deliver a prisoner in his custody upon execution against the person to the incoming sheriff, where such new sheriff has not served upon him a certificate of election or appointment, as provided by 2 B. S. 457, §§ 67 et seq.
    
    Appeal from a judgment of this court, entered upon a dismissal of the complaint at the trial.
    The plaintiff commenced, in April, 1877, this action. In his complaint he alleges the recovery of a judgment in his favor against one John O’Grady, in October, 1874, the issuing of an execution against the property of O’Grady, and its return unsatisfied; the issuing of an execution in June, 1876, against the person of said O’Grady; his arrest by the defendant as sheriff, prior to the 1st of January, 1877; the expiration of the term of office of the defendant on the 1st of January, 1877; the election of Bernard Reilly as sheriff, in place of the defendant; the service upon the defendant, on the 2d of January, 1877, of a certificate of the clerk of the city and county of New York, under his official seal, certifying that the said Bernard Reilly had qualified as such new sheriff, and given the security as required by law; the failure of the defendant within ten days after the service on him of said certificate to deliver to his 'successor, the new sheriff, the said John O’Grady, who then remained in custody of the said defendant, confined within the liberties of the jail of the city and county of New York.
    The answer of the defendant put in issue all these allegations of the complaint, with the exception of admitting the arrest of O’Grady. The evidence in the case showed the recovery of the judgment, the issuance of an execution against the property, the issuance of an execution against the person, the arrest of O’Grady, and that the defendant turned over the jail and the prisoners actually confined within its walls to Mr. Reilly, the incoming sheriff, and that O’Grady was never transferred by the defendant to Reilly as sheriff.
    Upon the trial of this action the complaint was dismissed, and judgment was thereupon entered for the defendant. From the judgment the plaintiff appealed.
    
      E. P. Wilder, for appellant.
    
      H. W. Bookstaver, for respondent.
   Van Brunt, J.

[After stating the facts as above.]—This action is one which is entirely technical in its character, and is a right given expressly by statute. The theory under which the statute proceeds is that within ten days after the certificate of election by an incoming sheriff is served by the outgoing sheriff, all powers of the outgoing sheriff cease and determine, with the exception of completing the execution of process partially executed. It necessarily follows that the power -of the outgoing sheriff to retain in his custody, or to arrest any prisoners by virtue of any process, terminates after the ten days have expired from the service of the said certificate. Therefore, as to the prisoners who have not been actually transferred to the new sheriff, there is no officer who has the right to restrain them of their liberty, and they are in the eye of the law at large. The new sheriff has no control over the prisoner, because he has never been transferred to him. The old sheriff cannot restrain the prisoner of his liberty, because after the ten days the old sheriff has lost all the powers appertaining to his office.

The plaintiff, in his complaint in this action, has alleged that because within ten days after the service of the certificate of the election of the new sheriff, the old sheriff has failed to transfer the prisoner, he has a right under the statute to main tain this action. The evidence entirely fails to .establish this cause of action, because no certificate has ever been served by the incoming sheriff upon the outgoing sheriff. It is to be observed that the sheriff is not bound to confine at all, prisoners taken upon execution, and that he has a right to allow a prisoner taken upon execution the limits, without any bond, and all the liability that he incurs is that the prisoner shall not leave, the jail limits. It would be no escape if the sheriff should confine a prisoner elsewhere than in the jail, as long as he was within the jail limits, or that he had allowed him to go upon the limits without a bond; and he would be just as much in either of those cases in the custody of the sheriff, as though he was actually confined within the four walls of the jail. As a consequence, the fact that the prisoner is not found within the four walls of the jail at the time of this transfer by the outgoing sheriff to the incoming sheriff, is no evidence whatever of an escape. Therefore, the facts proven upon the trial of this cause do not show that there has been an escape, or that the authority of' the outgoing sheriff, as to any prisoners upon the limits, has ceased and determined by reason of the service of the certificate required by law.

In the case of Hempstead v. Weed (20 Johns. 73), the right of the old sheriff to retain the custody of prisoners not turned over to his successor is expressly recognized. It is true that that case was decided prior to the revision of the statutes, but there is little difference in principle between the certificate of discharge and the service of the notice before mentioned; the only difference between the two cases being that in the one case the outgoing sheriff is the actor, and in the other case the incoming sheriff performs the duty. In the case of Smallman v. Lanes (2 Leonard, 54) it was expressly held that there could be no escape so long as the prisoner was in actual custody, and not at large ; and it was said by one of the justices that it is an escape in the old sheriff as soon as his authority is determined, and the prisoner not delivered.

In the case at bar there has been no action taken which has terminated the authority of the outgoing sheriff. In the case of Partridge v. Westervelt (13 Wend. 504), the same principle is recognized, because in that case it is said that the common law considered the prisoners in the custody of the old sheriff until assigned to the new, and the Revised Statutes retain the same principle.

In the case of Hinds v. Doubleday (21 Wend. 227), it is expressly stated that the powers of the old sheriff in relation to all prisoners in his custody do not determine with the termination of his term of office, but cease only within ten days after the service of a certificate that the new sheriff had entered upon the duties of his office. _ It would, therefore, seem to be established, both by statute and authority, that until the certificate is served by the incoming sheriff upon the outgoing sheriff, the powers of the outgoing-sheriff as to prisoners in his custody remain unchanged; and the fact that he has turned over some prisoners to tire incoming sheriff does not affect his powers as to the custody of prisoners not transferred; this is expressly recognized in the case of Smallman v. Lanes (supra).

I think, therefore, that the judgment of the court below was entirely right, and that no action could be maintained upon the facts established upon the trial of this action.

The judgment must, therefore, be affirmed, with costs.

Charles P. Daly, Ch. J., and Van Brunt, J., concurred.

Judgment affirmed, with costs.  