
    JOHN B. PARKER v. JOHN J. BRADLEY.
    
      Sheriff—not excused by service on him of attachment against party issuing execution, from obligation to malee return.
    
    The sheriff is not relieved from his obligation to make return of his proceedings upon an execution against the property of defendant, by the fact that prior to the return day thereof he was served with a warrant of attachment against the plaintiff, granted upon the application of defendant as plaintiff in another action. If he neglects to return the execution, he is liable to be proceeded against by attachment, and it is no defense that he has not been ruled or notified to make a return. Return can be made according to the facts, and if a sufficient excuse for not paying the money is presented, under the principles of Wehle v. Conner (69 N. Y. 646) and Dunlop v. Paterson Eire Ins. Co. (74 N. Y. 145), the court will not compel the sheriff to pay over. The court in this case held that as the sheriff had not been ruled or notified to make return, the order directing attachment against him should be modified by the addition of theVords: “unless within ten days a return of it (the execution) shall be made according to the command thereof.”
    Before Curtis, Oh. J., Sedgwick and Freedmak, JJ.
    
      Decided June 18, 1880.
    Appeal from order directing that attachment issue against the late sheriff of the city and county of New York.
    
      Yanderpoel, Green & Owning, attorneys, and ATmon Goodwin, of counsel, for the sheriff, appellant, urged:
    I. The motion is in form to compel a return of the execution, but is, in fact, to compel the sheriff to pay over the $3,500 held by him, and it was argued below upon this theory. The sheriff made no objection then, and does not now, to the return of the execution, in accordance with the facts. The opinion of the judge below shows that this was the point in dispute. “The money in the hands of the sheriff, collected on the execution against the defendant, belongs to the plaintiff, and cannot be attached while in the sheriff’s hands in a suit brought by the defendant against the plaintiff.” The decision of the court below was erroneous. The whole question has been recently litigated at great length in this court, and finally passed upon in the court of appeals, in the case of Wehle v. Conner (69 N. Y. 546). In that case the court held, that where a sheriff, having an execution in his hands, receives an attachment against the judgment creditor, and by virtue thereof levies upon the judgment debt, the attachment becomes a lien upon the judgment and execution, and all moneys collected upon the executions are liable to be applied toward the payment of any judgment recovered in the action wherein the attachment was issued; and, until the attachment is vacated, or the lien thereof in some manner discharged, it must be regarded as a valid process ; and the sheriff has no right to pay over to the judgment creditor moneys collected on the execution. That case is on all fours with the present, except that in Wehle v. Conner the sheriff had levied upon property ; and it did not appear whether the money, i. e., the proceeds of the property, had actually come into Ms hands. On the re-trial before Mr. Justice Freedman, it appeared that part of the money had come into the sheriff’s hands ; and the court held that the attachment applied equally to that. Freedman, J., says: “If he had not only made a levy, but had collected the full amount of the executions, the cash in his hands would be bound by the attachment.” Appeal was taken by the plaintiff to the general term of this court, and the decision of Mr. Justice Freedman affirmed (Wehle v. Conner, MS. opinion).
    II. So far as the motion was merely to compel the return of the execution, it was irregular, and should have been denied. We believe that under rule 6 (Gren’l Rules), it has been the uniform practice for the court to require ten days’ notice before ruling the sheriff to return process, and especially so unless some special reason is shown why the rule should be departed from. The only reason given in the plaintiff’s affidavit for shortening the time, was that “ the assignee desired the immediate payment of said money by the sheriff.” The court will not compel the sheriff to return process where there is good reason for retaining it. Until the settlement of the conflicting claims of the parties, the sheriff is bound to retain his process, and apply the money in accordance with the rights of the parties, as finally established.
    
      Charles Id. Black, for respondent, urged :
    I. The attachment delivered to the sheriff in the suit of Bradley against Parker, in the supreme court, did not dispense with the duty required from the sheriff—to return the execution and indorse his return of satisfaction thereon as required by the statute. If he had any doubt as to the proper disposition of the money, he could have brought it into court, which can control the application of the funds (Wehle v. Conner, 63 N. Y. 258, 260 ; 69 Id. 546, 549 ; Dunlop v. Paterson Fire Ins. Co., 74 Id. 145, 152, 153).
    II. The sheriff, having neglected to return the execution, can be proceeded against by attachment or by suit, at the election of the creditor, Nor is it any answer for him to say he had not been ruled to return the execution (Burk v. Campbell, 15 Johns. 456; Stevens v. Rowe, 3 Den. 327, 330 ; 2 R. S. 440, 535; Code Civ. Pro., § 14).
    III. It does not appear that the sheriff has made a levy under the warrant, as required by the statute, and without such levy no lien could be created (Code Civ. Pro., § 649).
    IV. The money collected by the sheriff on the execution issued against the defendant cannot be attached while in the sheriff’s hands, in a suit brought by the defendant against the plaintiff. (Drake on Attachments, § 543 ; Hoag v. Hoag, 55 N. H. 172 ; Blaisdell v. Ladd, 14 Id. 129 ; Belknap n. Gibbons, 13 Met. 471).
    V. The plaintiff having assigned the cause of action to Stratton, in trust for Mrs. Parker, November 15, 1877, and he having assigned the judgment to Watts upon a like trust, the sheriff had no right, as against this assignee, to hold the money he collected under the execution in this case to satisfy a claim against the plaintiff (Baker v. Kenworthy, 41 N. Y. 215 ; Wehle v. Conner, 69 Id. 546, 550).
    VI. The money which the sheriff has collected under the execution in this case is not a chose in action and not the subject of garnishment, but personal property, capable of manual delivery, and can only be reached' by him, if at all, by levy (Code Civ. Pro., § 649, sub. 2). If the plaintiff had not assigned the cause of action, the money, being still in the hands of the sheriff, would not belong to the plaintiff, and the^ sheriff could not levy on it under an attachment against him until it was paid over (Baker v. Kenworthy, swpra, 215, 216).
    VII. The money collected on the execution in this case went into the hands of the sheriff from the plaintiff in the attachment suit (the defendant here). The rule is that when “the money in the hands of the officer of the law did not go there directly from the debtor in the attachment, but from some other and original and independent source, over which the attachment debtor had no control as an owner,” it is not the subject of an- attachment (Dunlop v. Paterson Fire Ins. Co., 74 N. Y. 145, 151).
    VIII. The statute requires the sheriff, in executing an attachment, to take personal property capable of manual delivery into Ms actual custody. The sheriff had obtained possession of this money under an execution issued out of this court, and that possession could not be interfered with by process from another court (Dunlop v. Paterson Fire Ins. Co., 74 N. Y. 145, 148, 149, 151; Shinn v. Zimmerman, 3 Zab. 150).
   By the Court.—Freedmah, J.

This is an appeal from an order directing an attachment to issue against Bernard Reilly, the late sheriff of the city and county of New York, for neglecting to return an execution against the property of the defendant as required by the writ. On June 11, 1879, the plaintiff recovered a judgment against the defendant for the sum of $4,832.64, arid on June 12, an execution was issued thereon to said sheriff. He collected the entire amount, and on September 23, 1879, he paid over to the plaintiff the sum of $1,332,64, on account. The balance he claims to hold under a warrant of attachment issued to him out of the supreme court on or about June 26, 1879, in an action wherein the defendant, John J. Bradley, was plaintiff and the present plaintiff, John B. Parker, was defendant. The warrant commanded' Mm to attach and safely keep the property of the said, Parker, or sufficient thereof to satisfy the claim of Bradley, amounting to $2,000, with some three years’ interest thereon, besides the costs and expenses of said action. It is conceded that the said warrant of attachment still remains in full force and effect. There is no proof, however, of what the sheriff did under it.

These facts do not constitute a sufficient excuse for omitting to make a return. The statute requires the sheriff to execute the execution according to the command thereof and make return thereon of Ms proceedings under Ms hand. The attachment delivered to him did not relieve Mm of that duty (Wehle v. Conner, 63 N. Y. 258 ; affirming S. C., 40 Super. Ct. 24).

He can make a return according to the facts. If by them an excuse for not paying over the money is presented, within the principles decided in Wehle v. Conner (69 N. Y. 546) and Dunlop v. Paterson Fire Ins. Co. (74 Id. 145), the court will not compel him to pay over; for whenever a claim is made against a sheriff for money in his hands, and there is any doubt as to who is entitled to it, it is usual for the court, for the protection of the officer, to refuse to compel him to decide the controversy at Iris own risk (Mills v. Davis, 53 N. Y. 349). The question, therefore, of the sheriff’s liability to pay over, and if he be liable, whether payment should be ordered summarily, should be reserved until after the coming in of the return.

The sheriff having neglected to return the execution according to the command thereof, was liable to be-proceeded against by attachment, and it was no answer for him to say that he had not been ruled or notified to make a return (Burke v. Campbell, 15 Johns. 456 Corning v. Southland, 3 Hill, 552).

But the fact that he had not been ruled or notified, taken in connection with-the other facts relied on by Tiim as an excuse, demanded that before the actual issue of the attachment an opportunity should bo afforded to him to make a return. The order directing-that an attachment issue against the said sheriff for not returning the execution, should therefore be modified by adding at the end thereof the words, unless, within ten days a return of it shall be made according to the command thereofand as thus modified the order should be affirmed, without costs on tho appeal.

Curtis, Ch. J., and Sedgwick, J., concurred.  