
    BERNHEIM v. DAGGETT.
    
      Brooklyn City Court, General Term,
    
    
      April, 1880.
    
      Again; Court of Appeals,
    
    
      Mar oh 22, 1881.
    Pleading.—Action against Sheriff.—Non-return of Execution. —Amendment of Answer on Trial.—Stay of Sale on Execution.—Plaintiff’s Direction not to Sell.—Nominal Damages.
    In an action against a sheriff for failure to return plaintiff’s execution, where the answer only denies such failure, the court has power to allow defendant to amend his answer by setting up that the debtor had no property to satisfy the execution, and that the ..omission to return it was by direction of the plaintiff’s attorneys.
    Where it cannot operate to plaintiff’s prejudice, the court may properly allow such amendment at the trial.
    An order of court staying a sale on execution is operative from the ■time of its service upon the sheriff, and authorizes him to relieve from their bids, the persons to whom portions of the property levied on have been already struck down before notice of the stay reached the deputy in actual charge of the sale.
    If a sale on execution is stayed by order of court until after expiration of the sixty days limited by law for its return, and the sheriff is requested by the plaintiff’s attorney to hold his levy, but not proceed to sale, he is justified in so doing; and an action for the omission to return, begun before the request is countermanded, cannot be maintained.
    The sheriff, being instructed to hold his levy but not to sell, is not liable even for nominal damages, since he could not hold his levy if he returned the execution.
    
    Appeal by the 'plaintiff from a judgment in favor of the defendant, and from an order denying a new trial.
    Charles L. Bernheim brought this action against Albert Daggett, sheriff of Kings county, for damages for failure to return plaintiff’s execution against Nicholas Ehlers within sixty days as required by the statute.
    The further facts are stated in the opinion.
    
      
       See note at the end of this case, and the following case. * In Adams v. Bowe (N. Y. Marine Court, Trial Term, March, 1883), it was held, that a sheriff had no power to release a levy and take the debtor’s certified check for the amount of the execution, to be held by him as security for his own protection, but that the check, which was tantamount to money, satisfied the execution, and under § 1266, Code Civ. Pro., became, immediately upon its receipt by the sheriff, the property of the plaintiffs in execution, for which they might maintain an action against the sheriff, although the sixty days allowed for his return had not expired, and no return had been made.
      
        It seems, that the plaintiffs’ right of action accrued at the time the check was taken, without regard to the provisions of section 1266 of the Code of Civil Procedure, or of the Statute—L. 1860, p. 13, c. 6.
      The duty of the sheriff is defined and circumscribed in the writ of execution itself, and as to that duty the court will neither instruct nor interfere.
      Whenever the debtor’s property comes within the grasp of the execution, it is at once absorbed; it ceases to be the property of the debtor, and becomes the property of the plaintiff in execution, subject .only to the power of sale on the part of the sheriff.
      Trial by the court. John Adams and another sued Peter Bowe, as sheriff of Hew York county, to recover the amount of an execution in plaintiffs’ favor, as money had and received by the defendant for the plaintiffs’ use.
      Hawes, J.—There is no substantial dispute as to the facts of this case. The plaintiffs recovered a judgment for costs against the Hew York, West Shore and Buffalo R. R. Co., issued execution thereon, and on August 5, 1883, delivered the same to the sheriff, the defendant herein. On August 6, the defendant made a levy upon the office furniture of the company, and the company, not willing to have their office furniture removed, and desiring to take some legal steps looking to a modification or reversal of the judgment, gave a certified check to the defendant or his deputy for the full amount of the execution; but it appears that when this payment was made, a letter was sent by the company to the sheriff, to the effect that this check was to be deemed a security for him, and to be held by him for sixty days, and it must be assumed, I think, that the sheriff assented to this arrangement. On the 7th and also on the 8th of August, plaintiff demanded payment of the amount in the hands of the sheriff, which was refused. This action was commenced on August 9, 1883, and is brought to recover the amount of the execution, as money had and received by the defendant for the plaintiffs’ use.
      The defendant claims that no right of action existed on August 9, and that under the provisions of section 1366 of the Code of Civil Procedure, he has sixty days in which to make his return and pay the money, and further, that the plaintiffs have no claim upon the money thus paid, inasmuch as it was not to be applied upon the execution, but was held by the sheriff as collateral security only, and to procure the release from actual custody of the property levied upon, and that it was not the intention of the judgment debtor, or of the sheriff, that the money so paid should be applied upon the execution. The counsel for the sheriff states that this has always been the custom of the office; and in a case where some error has been committed as to the judgment or the execution, or where ready relief from any cause could not be procured from the court, such an act on the part of the sheriff would certainly seem to be both benevolent and justifiable, provided he had the power under the statute to exercise such a discretion.
      Under the early English law the sheriff represented the earl or count in the administration of the county government, and had all the authority for the administration and exercise of justice which the earl bad. Deriving his authority directly from the king, he was not only an officer of great antiquity, “the government of the county being committed to his charge and care,” but he w'as necessarily clothed with certain discretionary and judicial functions. The wide authority once exercised by the sheriff, however, has been seriously modified, and he is now a mere ministerial officer whose duties are clearly defined by statute and whose functions are restricted by the court, whose officer he is. He must execute every writ placed in his hands with the utmost expedition, and without favor, refraining from undue force or violence. In the case of an execution it is his duty upon its receipt by him to indorse upon it, the year, month, day and hour when he received it, and then to execute its mandate immediately and in every particular, and with faithful but prudent energy; and if he thus performs his duty the law protects him, even though the execution be irregular (assuming of course that it has been issued by a court.of competent jurisdiction); but while the law protects him, it exacts in turn the most implicit obedience on his part. The statute provides that the sheriff shall make a return of the execution within sixty days, which must contain a statement of the proceedings taken on the execution. How it is quite clear that this return under the old practice brought in the result of the sheriff’s effort, as well as its history, and that the payment of the money into court, if it had been made, was an inherent part of the “return.” The ancient writ commanded the sheriff “to have the money before our justices on the return day.” In Bacon’s Abridgment (title “Execution”) it,is said that “the sheriff cannot deliver the goods to the plaintiff in satisfaction of his debt, but the goods are to be sold and the money in strictness is to be brought into court.” This rule has long since been relaxed, and by acquiescence or permission of the court, rather than by strict force of law, the sheriff is permitted to pay the money directly to the plaintiff. It is clear, therefore, from this brief reference, that the return and payment are substantially one and the same thing, and that the sheriff can no longer claim to hold the money after he has made his return, whoever may be entitled to first receive it.
      This point being necessarily conceded, we can next inquire, when is the sheriff compelled to make his return. The mandate states that it must be “within sixty days after its receipt by you." The elementary writers all state that no action against the sheriff will lie until the expiration of the sixty days (Crocker on Sheriffs, 375; Freeman on Executions, 448), and the case of Cassidy v. Mcacham, 3 Paige, 311, declares that “although a sheriff might lawfully return an execution before' the return day, yet, such return did not take effect until after the return day had passed, and then was good by relation,” and that no bill could be filed until after the return day in such a case. See also, Williams v. Hogeboom, 8 Paige, 469; Spencer v. Cuyler, 9 Abb. Pr. 382; Renaud v. O’Brien, 35 N. Y. 99, rev’g 35 How. Pr. 67; Tyler v. Willis, 33 Barb. 337; S. C., sub nom. Tyler v. Whitney, 12 Abb. Pr. 465, to the same effect.
      Since the adoption of the Code, I have been unable to find any case where the doctrine set forth in Cassidy v. Meacham is held. Supplementary proceedings, as well as creditors’ bills in equity, are all founded upon returns which have been made by the sheriff within the sixty days, and they cannot now be questioned collaterally, and the return can only be attacked for fraud or collusion.
      A claim that there was any statutory prohibition as affecting the sheriff, or the vitality of the return would not be seriously considered, and the sheriff having the right to return the execution within the sixty days, the money which had been realized upon the execution, would then be clearly due and payable. Chapter 6 of the Laws of 1860 provides, that upon receipt by the sheriff of the amount due upon the execution, he shall, on demand, deliver a copy of such execution and of his indorsement of satisfaction thereon, and that upon the filing of such execution, so indorsed, the clerk shall enter satisfaction of such judgment. This statute is substantially embodied in section 1366 of the Code of Civil Procedure. It is clear that it is the duty of the sheriff to make this return of satisfaction immediately upon the payment of the amount due, and it would not be seriously claimed that he could hold the money after the execution was satisfied, for it has been repeatedly held that the sheriff is functus officio the moment the execution has been satisfied. The word “ immediately,” in section 1366 of the Code, is tantamount to the words “on demand” in the statute of 1860, and cannot be misunderstood.
      In the case at bar the money was paid on August 5, and it must be assumed that the sheriff complied with the law and immediately indorsed a return of satisfaction. His duties were performed and the money became payable with outdemand. Nelson v. Kerr, 59 N. Y. 224; affi’g 2 Sup'm. Ct. (T. & C.) 299. In contemplation of law the money is paid when the return is made. The plaintiffs, however, demanded the amount from the sheriff on August 7, and the action cannot be deemed premature. In this connection I may say further that in my opinion the right of action accrued at that time, without regard to the provision of the Code or the statute above cited; for if the execution was in fact satisfied, the money so held by him, was not his, but belonged in equity and good conscience to the plaintiff, and he could at once maintain an action against the sheriff for money had and received to his use. Whether the sheriff had made his return or not is unimportant in view of the character of the action here brought, and no question can be raised that such an action is not maintainable. Armstrong v. Garrow, 6 Cow. 465.
      But it is claimed by defendant that the execution was never satisfied, but that the check or money was received by him from the judgment debtor as collateral security merely, and that it was paid by the judgment debtor under a written notice that it was to be so held and was not to be applied on the execution. It does not affirmatively appear that the sheriff assented to this arrangement, or that any such contract was entered into, but even if it had been, and I have assumed that such was the fact, yet, I fail to discover what authority the sheriff had to so deal with the execution. The levy in this case was made and perfected, and presumably upon sufficient property to satisfy the execution. There was no claim of a third party, and no legal reason is suggested for his delay in enforcing the execution. It is not claimed that the property was placed in the hands of a “receiptor,” under the well settled rules which would warrant such an act on the part of the sheriff. Every intendment must be assumed that a public officer performs his duty.
      How what is the fact in this case ? The sheriff voluntarily relinquishes the levy, and accepts the defendant’s check for the amount of the execution. The pleadings would seem to imply that the sheriff held money and not a check, but in my view of the case it is quite unimportant whether the judgment debtor gave a check or money, both being assumed upon the argument to be collateral security. It is clear that he has relinquished the levy and accepted the check. How, if the sheriff had the legal authority to receive this money as collateral security merely, then the plaintiff is remediless in this action, for the execution would have been operative at the time action was brought, and the defendant could not have pleaded the levy as a satisfaction. Upon a careful examination, I think it will be found that the sheriff has no power to make such a contract, and if he did make such a contract as a matter o'f fact, I am of the opinion that the law will deem it invalid. The sheriff cannot be a stakeholder, neither can he be the agent of the judgment debtor in any phase. See Wright v. Child, 1 Ex. 358.
      The duties and powers of the sheriff are often discussed in the early reports. In Codwise v. Field, 9 Johns. 263, the coroner gave a receipt in full, agreeing to pay the plaintiff in consideration of a' debt due from the coroner to the judgment debtor. Held, no satisfaction as beyond the power of the coroner ; otherwise if the coroner had received the money. In Hoyt v. Hudson, 12 Johns. 207, the officer took security for the debt. Held, that it constituted payment and the execution was satisfied. This case is quite conclusive upon the point at issue, in so far, as the reason of the rule would tend to establish it. See also Clark v. Wiltons, 2 Ld. Raym. 1072 ; 1 Salk. 322; Ladd v. Blunt, 4 Mass. 402; Reed v. Pruyn, 7 Johns. 426; Sherman v. Boyce, 15 Johns. 443.
      It can be well said that all these cases have arisen after the return had been made, and the sheriff is necessarily estopped by his return. There is no case which I have been able to find in the English or American decisions where this question has arisen before the return, and we are therefore compelled to consider it a new question in so far as the want of precedent would make it such. I think, however, that there are general principles underlying the powers and duties of á sheriff, which will be equally conclusive as decided cases, and I am disposed to consider these principles as elementary. The sheriff has the undoubted right to extend favors to the judgment debtor, in case he does not come within the inhibition of the statute, and he may in his discretion refrain for a reasonable time from selling the property, provided always that he grants no such delay as would preclude him from making a final return, on or before the expiration of the sixty days, and the court has no power to compel such sale, nor will the court instruct the sheriff. Bowie v. Brahe, 4 Duer. 676; S. C., 2 Abb. Pr. 261 ; Morange v. Edwards, 1 E. D. Smith, 414.
      But while this is true, it will be found that the reason of the rule lies in the fact, that the duty of the sheriff is defined and circumscribed in the very writ itself. The law has determined his duty and the court therefore will neither instruct nor interfere. The duty of the officer is to make the levy upon the property of the judgment debtor within his county; but if he has once made a levy sufficient to satisfy the execution, he cannot make a second, levy, and if the levy has been made upon sufficient property the debtor is forever discharged and can plead the levy as a bar, and the proof of such a fact will constitute a good and sufficient defense to any subsequent action in that behalf., Moreover, all the property of the defendant within the bailiwick, whatever its character, is subject to the execution, and whenever defendant’s property comes within the insatiable grasp of the execution it is at once absorbed. This arises from the inherent character of the process, for, by operation of law property so seized ceases to be the property of the defendant, and is transmitted into the property of the plaintiff, subject only to the power of sale, on the part of the sheriff. The sheriff cannot in any sense whatever.act as the agent of the debtor, for his authority is measured by the power lodged, in the writ, and that is clear and well defined. Applying these principles to the case at bar, it will be seen that the sheriff received a certified check from the defendant, claimed by the sheriff to have been given to him only as collateral security. By what right, or by whose authority can he receive such a check, upon these conditions ? His authority is restricted to taking defendant’s property for the purpose of satisfying the execution. If he yielded his levy upon the office furniture he clearly elected to take the check, and resorted to that for the satisfaction of the execution. A certified check is clearly tantamount to money, and it was the plaintiff’s money at that moment. The case of Reed v. Pruyn, supra, holds in substance that a sheriff cannot take a security and still hold the execution, although other questions were involved in that case. It seems to me that in the very nature of things, the security so called, ceases to bo security the moment it comes within the operative power of the execution.
      The theory of “forthcoming bonds,” which are provided for in some States, is not inconsistent with this view, for they derive then-life from the statute ; they are equal in dignity to any other process, and are not in any sense an outgrowtn or an incident to the execution. But were it otherwise, it will not be claimed that the rules governing “ receiptors ” or forthcoming bands are applicable to the case at bar.
      It may be further added that if the position of the sheriff is correct then this check was given for his (the sheriff’s) protection, and being so taken, the sheriff would presumably have some implied authority in law to enforce the obligation, in case of failure on the part of the judgment debtor. Every wrong has a remedy, and this presumption of law that the sheriff must in the nature of things have power to realize upon his collateral security can arise only upon the assumption that the sheriff, whose powers are circumscribed by the writ, could use the writ already in his hands to. enforce payment upon his own collateral, but the law will not tolerate that an officer shall wield the process of the courts in his own favor, in order to exact such a measure of justice as he may think due to himself. “ A sheriff cannot do execution when he himself is a party and therefore an extent by him, when he is a censor, will be void.” (Com. Dig., “Viscount,” E. 1. He need not be a party to the record, but it is equally fatal if he is beneficially interested. 2 12. S. 441-, § 84; 3 Id. 6 ed. 727, § 111, [84], Judge Platt in Sherman v. Boyce, supra, declares “that it would not only lead to oppression and abuse but would tend to subvert the foundation of private rights and of civil liberty.” It is clear, therefore, that the sheriff, holding this check as collateral security in Ms own behalf, could not enforce it by virtue of the execution, or in fact in any way as sheriff. But if the right is not enforceable it can safely be said, by the simplest syllogistic reasoning, that such a right does not exist, and that the sheriff, while acting as such, never received any money or any check as collateral security for his own protection; and he clearly had no authority to receive it in behalf of any one else.
      From every phase of this case, so far as I have been able to examine it in the absence of any precedent or authority, I am. convinced that the taking by tile sheriff of any sucli collateral security as was testified to in this case was wholly beyond his power or authority, and that by operation of law the money so paid came within the grasp of the execution, and was the property of the plaintiff and was hold by the sheriff for his use and benefit, and that the plaintiff had a clear right of action to recover it as such.
      Judgment for plaintiff, with costs.
    
   McCue, J.

On March 1,1876, the plaintiff recovered judgment against one Nicholas Ehlers for $3,710.60, in the supreme court, city and county of New York, and on the same day he caused a transcript to be filed in Kings county, and issued execution upon said judgment to the defendant, then sheriff of said county, pursuant to which the sheriff made a levy. The defendant had at this time other executions in his hands against the same defendant, upon judgments recovered as follows : City Court of Brooklyn, Henry Behrman v. Nicholas Ehlers, judgment for $873.26, recovered January 31, 1876; execution issued the same' day, and levy made February 1, 1876 ; Supreme Court of Kings county, Raphael Braun v. Nicholas Ehlers, for $3,077.89, recovered February 29, 1876, and execution issued same day.

The property of the defendant in the executions consisted of a large number of milch cows, wagons, some horses, harness, etc., being the general outfit of a milk dairy. The sheriff advertised the sale of the property for March 13, 1876. No sale took place on that day and the sale was adjourned to March 20, then to April 7, and again to April 13, on which day a sale was attempted. Some of the property was put up and knocked down to one or more bidders, but the sale was not perfected, and was adjourned because of the service of certain orders staying the sale made in the aforesaid actions. It appears from the evidence that' the orders staying the sale were made and served' before the sale had actually commenced, but the place of sale being quite distant from the sheriff’s office, some time intervened before notice of the stay was given to the deputy in charge of the sale. As soon as the deputy received notice of the stay, he declared that “ the sale was for nothing,” as the order of the court stayed it. It would appear from the testimony that the parcels which had been struck off would, if the sale had been carried out, have realized enough or nearly enough to satisfy all the executions. ,

The sale was adjourned to April 20 and 27. No sale was made, and nothing was done pending the disposition of the orders to show cause, &c., until June 7, when a sale was made, the property realizing a sum sufficient to satisfy the prior executions, and leaving the plaintiff’s execution entirely unsatisfied.

It seems that between April 13 and June 7 large expenses had been incurred in keeping the property, and it was suggested that some of the "property had disappeared, but there was nothing in the case charging the defendant with any specific act contributing to the loss of the property, if there was any.

This action seeks to recover damages for failure to return the plaintiff’s execution within sixty days. The answer admits the formal portions of the complaint denying only the allegation of failure of duty in not returning the execution within the time required by law. After the plaintiff rested, the defendant' was granted leave to amend his answer by setting np: First, that the defendant in the execution had no property out of which the execution could have been satisfied. Second, that the omission to return the execution within sixty days was by direction, of plaintiff’s attorneys.

The plaintiff objected to the amendment and excepted to the decision of the court, and this point forms one of the main points on this appeal.

In addition to this objection to the amendment allowed, the plaintiff claims that the sale made on April 13, was valid, so far as it had proceeded, and that the sheriff is liable to account for the proceeds which he might have realized, and that the defense that there was not property sufficient to satisfy the execution is not sustained..

It is also claimed that the evidence did not sustain the defense, that the failure to return the execution was because, of directions given by the plaintiff’s attorney ; and lastly, that the non-return of the execution entitled the plaintiff to nominal damages in any event, whereas the verdict was for the defendant.

As to the question of the amendment, which the defendant was permitted to make on the trial, we are of opinion that this was a matter within the discretion of the court, and we cannot see that it was exercised to the plaintiff’s injury. The plaintiff was present at the sale of April 13, and communicated the facts which there occurred to his counsel, and he was again present at the sale of June 7, and so also was his attorney. The plaintiff was able to produce on the trial a number of witnesses as to what took place on both days, and was not therefore at any disadvantage in respect to the question as to what property the defendant had and its value. The correspondence which had taken place between the plaintiff’s attorney and the deputy-sheriff in charge of the execution, and the various orders under which the sale had been stayed, were all well known to the parties and were produced on the trial, so that the plaintiff was not taken by surprise on the question as to whether the delay in returning the execution was or was not because of instructions to the sheriff by the plaintiff’s attorney. All the testimony which bore upon these two questions seems to have been at hand, and appears in the printed case, so that it could not be urged that the plaintiff was surprised by that line of defense. Indeed, the objection to the amendment was not placed upon the ground of surprise, but only on the ground that the defenses were new, and that it was not in the power of the court to permit them to be made on the trial. That it was clearly within the power of the court to allow the amendment, see Knickerbocker Life Ins. Co. v. Nelson, 7 Abb. N. C. 170, and authorities referred to in the note.

We are of opinion also that the orders staying the sale, advertised to take place on April 13, were operative from the time of their service upon the sheriff, and were a sufficient authority to the sheriff to relieve from their bids the persons to whom portions of the property had been, already struck down, before notice of the stay had reached the .deputy in actual charge of the sale.

The evidence upon the question of instruction to the sheriff not to advertise a-sale under the plaintiff’s execution, was sufficient to sustain the verdict. It is not necessary to refer to the correspondence at length. The direct wish contained in the letter of March 20, 1876, was a plain direction not to proceed to sale, and amounts in law to a protection to the sheriff against the charge of failure to perform his duty. The sheriff had made his levy, and was under stay: First, by the order made at special term in Kings county, April 13, 1876, Justice GtILBEKT presiding, which was vacated by an order made at special term, Justice Pkatt presiding, May 10, 1876, with leave to renew motion in the proper county; Second, by the order made at special term in the city and county of New York, Justice Dtkman presiding, May 26, 1876, which was vacated, and order served on June 6, 1876, and on June 86, 1876, at a special term, Justice Donoiitjb presiding, an order was made vacating all stays in the action, which was not served until October 20, 1876. The defendant testifies that his levy was made upon all the personal property which Ehlers owned in the county of Kings, which had come to his knowledge, and that all of this property was sold at the sale of June 7,1876, immediately after the service of the order on the 6th day of June. The present action was commenced about June lo, 1877, and between that date and the date of the last communication made by the plaintiff’s attorney to the defendant, authorizing him to hold his levy but not to sell, it does not appear that this notice was countermanded, or that any request was made to proceed on his levy or return his execution.

The defendant having thus been stayed by order, until after the expiration of the sixty days, "and having received instructions to levy but not to sell, was justified in holding the levy, and is not, we think, liable in this action. This also answers the point raised on the argument, that the plaintiff was entitled in any event to a verdict for nominal damages, because of the non-return of the execution within the sixty days. The sheriff was directed to hold his levy, but not to sell. The sheriff could not hold his levy if he returned the execution. So far as the plaintiff was concerned he had the absolute power to direct the sheriff in regard to the process issued by him. This question was distinctly presented to the jury under proper instructions, and on this point they have decided in the defendant’s favor. We do not feel authorized to disturb their verdict.

In view of the legal effect which we think should be given to the orders to show cause, and to the special directions given to the defendant, we do not think it necessary to discuss the various exceptions which were presented upon the argument.

We are of opinion that the judgment and order appealed from should be affirmed, with costs.

From this decision the plaintiff appealed to the court of appeals.

Lewis Sanders, for plaintiff, appellant.

Benj. F. Tracy, for defendant, respondent.

The Court of Appeals,on appeal from the judgment, affirmed .it without opinion. 
      
       ¡Reported also less fully in 78 N. Y. 137.
     