
    Charles H. Smith, Appellant, v. Frank W. Geraty, as Marshal, Etc., Respondent.
    (Supreme Court, Appellate Term,
    April, 1908.)
    Municipal Courts — Procedure — Execution — Filing return.
    The duty oí a marshal to file his return of an execution issued out of the Municipal Court of the city of New York with the clerk of the court is not performed by mailing the return to the clerk.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city.of Mew York, tenth district, borough of Manhattan.
    Louis A. Brown, for appellant.
    Philip Cohen, for respondent.
   Seabury, J.

Sections 271 and 276 of the Municipal Court Act require the marshal to file his return with the clerk of the court. The statute does not provide that mailing the return to the clerk of the court shall be presumptive evidence of filing. A sheriff, in certain cases, is by statute authorized to make a return by mail (Code Civ. Pro., § 102) ; but I know of. no corresponding statute in reference to a marshal. I think that a return of execution, by a marshal to the clerk of the court, which is mailed by the marshal and properly addressed to the clerk of the court is not a compliance with sections 271 and 276 of the Municipal Court Act. A different question would be presented if there were evidence to show that the clerk received the return and filed it.

The statute required the filing of the return with the clerk. A paper is filed with the clerk when it is placed in his custody. Placing the paper in the mail, addressed to the clerk, is not placing it in the custody of the clerk. It is merely placing it in the custody of others to he delivered to the cleric.

In Phillips v. Beene, 38 Ala. 248, 251, the court said: “ The origin of the term (filing) indicates very clearly, that the filing of a paper can only be effected by bringing it to the notice of the officer, who anciently put it upon the string ’ or e wire ’. Accordingly, we find that the filing of a paper is now understood to consist in placing it in the proper official custody, on the part of the party charged with the duty of filing the paper, and the making of the appropriate endorsement by the officer.” See 19 Cyc. 531, and Holman v. Chevallier, 14 Tex. 337, 339.

The plaintiff having shown that the paper was not filed as required by law, in the absence of any evidence to the contrary, it was error to dismiss the complaint.

Gildersleeve and Dayton, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  