
    Patrick S. Boylan, App’lt, v. Francis S. Hodgkinson, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    Sheriffs—Action on bond op under-sheriff—Complaint — Sufficiency of.
    A complaint in an action against an under-sheriff, which alleges that he-had sold the property under mortgage foreclosure, in the equity of which, the plaintiff had an interest as devisee under the will of his uncle; that plaintiff had demanded from defendant the money, and that he had refused to pay to plaintiff his share of the surplus; that the sheriff had. assigned to plaintiff his interest in defendant’s bond to the extent of the surplus so received by defendant, is insufficient, for the reason that it does-not allege that defendant did not pay the surplus over to the sheriff or bring it into court as the statute directs.
    Appeal from a judgment of the Kings county special term, sustaining a demurrer to the complaint of the plaintiff.
    
      A. M. & G. Card, for pl’ff; Fernando Solinjer, for def’t..
   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 bis 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 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 or 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 the court and the plaintiff • appeals.

Our view is that the complaint is plainly insufficient. There is no allegation 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.

The payment of the surplus, or any portion of it to the plaintiff, would have been a clear violation of the statutes and of the official duty of the defendant. The Code provides what disposition is 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.

All concur.  