
    In the Matter of the Petition of Ernest L. Dawson.
    
    
      (Court of Appeals,
    
    
      Filed June, 19,1888.)
    
    1. Attachment — Theft of money received on levy by sheriff — Plaintiff in attachment suit must bear loss.
    W. and K. commenced an action against Dawson and obtained an attachment against Dawson’s property on the ground of his non-residence. The attachment was issued to Davidson, the sheriff of New York county, and he attached a certain debt owing from McD., P. & Co. to Dawson. Proceedings were thereafter taken in that action on behalf of the plaintiff that McD., P. & Co. paid upon the debt attached to Davidson, as sheriff, a certain sum. Thereafter and before judgment and execution in. the action Davidson misappropriated the money and absconded. Held, that the loss should fall upon the plaintiffs, W. and K.
    3. Same—Rule governing.
    When one of two innocent parties must suffer by the wrong of a third party in the absence of any other ground for placing the loss upon the one rather than upon the other, the one should bear the loss who put it in the power of the third party to commit "the wrong.
    Appeal from an order of the supreme court, general term, first department, affirming an order made at special term.
    
      Henry D. Hotchkiss, for app’lt; Robert S. Rudd, for resp’t.
    
      
       Affirming 13 N. Y. State Rep., 910.
    
   Earl J.

—In June, 1885, Wilson & Knowlton commenced an action in the supreme court against Dawson to recover damages for breach of contract and obtained an attachment against Dawson’s property on the ground of his non-residence. The attachment was issued to Alexander Y. Davidson, then sheriff of New York county, and he attached a certain debt owing from McDonald, Pearce & Co., to Dawson. Such proceedings were thereafter taken in that action on behalf of the plaintiffs that McDonald, Pearce & Co., paid upon the debt attached to Davidson, as sheriff, the sum of $2,316.4:3. Thereafter and before judgment and execution in the action Davidson, misappropriated the money and absconded. The question now to be determined, is who is to bear the loss of the sheriff’s misconduct and default, the plaintiffs or the defendant?

We think the loss should fall upon the plaintiffs. If this money had been seized by virtue of an execution and the defendant had been deprived thereof, it is well-settled that the loss would fall upon the plaintiffs and that to the extent of the property thus taken, the judgment and execution would be satisfied. People v. Hopson, 1 Denio, 578; Peck v. Tiffany, 2 N. Y., 456. In those cases the loss was held to fall upon the judgment-creditors because property of the defendants was taken and lost to them in consequence of legal measures instituted by the creditors. We think the same rule, and for precisely the same reasons, should be applied to a case of property seized by virtue of an attachment.

An attachment differs from an execution in that by virtue of it the property of the alleged debtor is seized in advance for the satisfaction of any judgment that may thereafter be recovered in the action, and during the pendency of the action the property is held by the attaching officer as security for the judgment thereafter to be recovered. As in the case of an execution the property is-seized at the instigation of the attaching creditor and for his benefit, and if it is lost to the debtor the loss should fall upon the creditor, and he should take his remedy against the sheriff upon his official bond.

When one of two innocent parties must suffer by the wrong of a third party, it is frequently difficult to find an intelligible ground for placing the loss upon the one rather than upon the other, and the difficulty is solved without any other reason by holding that that one should bear the loss who put it in the power of the third party to commit the wrong. That rule may be applied here. The plaintiffs not only caused the attachment to be issued to the sheriff, but they procured the order which compelled McDowell, Pearce & Co. to pay the defendant’s money to the sheriff.

If this money had been seized by virtue of an execution, it would at once have operated as a payment pro tanto upon the execution. Here, in theory of law, the money is in the possession of the sheriff, and when execution was issued to him it was at once applicable thereon, and must be deemed to have been so applied. If the sheriff had been found within his county, and the execution had actually been delivered to him, he could not have returned the same unsatisfied, but could have been compelled to return the same satisfied as to the amount of money received by him upon the attachment (Code, § 108), and such a return would have been conclusive in favor of the defendant, and would have left the plaintiffs with their remedy against the sheriff for money received by him,

We are, therefore, of opinion that the order should be affirmed, with costs.

All concur.  