
    REID v. STEGMAN.
    
      N. Y. Court of Appeals ;
    
    May, 1885.
    Action fob Non-betubn of Execution.—Shebiff ; liability FOB BEFUSAL TO EXECUTE VOID PBOCESS.Execution; against whom issued.
    An action was brought by a relator to recover a penalty for the violation of the excise law, and was entitled in the names of three persons “ as the Board of Commissioners of Charities of the County of Kings;” and, on plaintiff’s failure to appear, judgment for the defendant was entered and docketed against such persons, “ as the Board,” &c. In an action against the sheriff for non-return of an execution issued against such persons individually,—Held, that the docket and judgment did not authorize such an execution, which was therefore void, and though regular on its face, defendant was justified in refusing to execute it.
    Appeal from a judgment of the general term of the . city court of Brooklyn affirming a judgment for the defendant entered upon trial by the court without a jury.
    Philip H. Reid sued Lewis R. Stegman, as sheriff of kings county, for not returning an execution. ’ The execution was issued on a judgment for Reid, entered in an action brought by one killings as relator in the names of Charles J. .Henry, William M. Shipman, and ■ James Ryan, “as the Board of Commissioners of Charities of the County of Kings,” against said Reid for • violation of the excise laws {L. 1857, c. 628 ;'L. 1873, c. 820), and no one having appeared' to prosecute the action, the complaint was dismissed with costs, and judgment entered and docketed against said Henry, Shipman and Ryan, “ as the Board of Commissioners of Charities of the County of Kings,” and an execution reciting á judgment for defendant, in an action by said Henry, Shipman and Ryan against said Reid, was delivered to the defendant herein, and he refused to execute it.
    None of the parties against whom the execution was issued was a member of said board, or was in possession of any property belonging thereto, during the time the execution was in the hands of the defendant.
    Further facts appear in the opinion.
    The complaint herein was dismissed at the trial, and from the judgment affirming the judgment of the special term, plaintiff appealed.
    
      John H. Bergen, for the plaintiff, appellant.
    I. The execution was regular on its face, and a perfect protection to the sheriff {Code, § 1366, et seq. ; Hill v. Haynes, 54 N. Y. 153), and he was bound to execute it (Hutchinson v. Brand, 9 N. Y. 208, 210 ; Trustees of Rochester v. Symonds, 7 Wend. 395; Code, § 102.) If it was irregular, the only remedy was by special motion to vacate it (Harrison v. Wilkin, 78 N. Y. 390. See § 72, et seq. of Code). “ If the process is erroneous, it is voidable only and not void, and such defects the sheriff cannot set up” (Dunford v. Weaver, 84 N. Y. 452). He was bound to collect "the execution 66 according to the command thereof” within its life—60 days, and his breach of duty makes him personally liable to the plaintiff for all “ damages sustained by him,” which are the amount of the judgment (Ledyard v. Jones, 7 N. Y. 550 ; aff’g 4 Sand. 67).
    II. The plaintiff in the execution, could properly direct the execution to be made out of the property of either of the defendants in execution (Root v. Wagner, 30 N. Y. 9). The persons who brought the suit against Reid (Henry, Shipman and Ryan), did not constitute the Board of Commissioners of Charities of Kings County when the action was brought, February 24, 1882, and there was no such board. The action, therefore, by those plaintiffs as such board was entirely illegal and unauthorized, and was the same as if brought, in their names without the addition of the title of office, and being unauthorized, they are individually liable for costs (Jobbitt v. Giles, 22 Hun, 274; Butterworth v. Stagg, 2 Johns. Cas. 291; Giles v. Halbert, 12 N. Y. 32 ; White v. Madison, 26 N. Y. 124).
    The words “as Commissioner of Charities,” etc., in the title of the suit were surplusage, and must be treated as such (Davis v. Garr, 6 N. Y. 133 ; Merritt v. Seaman, 6 N. Y. 171 ; Code Civ. Pro. § 721, subdiv. ll, 722 and 723; Bannon v. McGrane, 45 Super. Ct. [J. & S.] 517).
    Not only must the complaint and summons be entitled in the representative capacity, but “ it is necessary that the complaint should show by proper averments made in an issuable form, that the party by or against whom the action is brought is entitled to act in a representative character, and that the action is brought by or against him in that capacity ; it is not sufficient that parties, plaintiff or defendant, should be designated in the title of the complaint as acting in such capacity, without further averments in the body of the "complaint” (2 Wait's Pr. 373 ; Forrest v. Mayor, &c. of N. Y., 13 Abb. Pr. 350; Root v. Price, 22 How. Pr. 372 ; Scrantom v. Farmers’ etc. Bk. 33 Barb. 527; aff’d 24 N. Y. 424). “ In the absence of these averments, the action will be regarded as brought by or against the party in his individual1 capacity” (2 Wait's Pr. 374; Hallett v. Harrower, 33 Barb. 537; Sheldon v. Hoy, 11 How. Pr. 11; Gould v. Glass, 19 Barb. 179 ; Ogdensburgh Bk. v. Van Rensselaer, 6 Hill, 240 ; Fowler v. Westervelt, 17 Abb. Pr. 59; Plumtree v. Draft, 41 Barb. 333 ; Hait v. Benson, 18 How. Pr. 302).
    III. It makes no difference whether the attorney who brought the action was authorized to bring it or not. If he was not, that fact is no defense to this action, but the remedy of the parties plaintiff in that suit is against the attorney (Hamilton v. Wright, 37 N. Y. 502 ; Brown v. Nichols, 42 N. Y. 26 ; Powers v. Trenor, 3 Hun, 5; Ferguson v. Crawford, 70 N. Y 256).
    IV. The suit against Reid was not even brought in the name of the board as it existed when the action was commenced.
    The legal title of the board under the statute is the “ Board of Commissioners of Charities and Corrections of the county of Kings.” The title of the suit is “Charles J. Henry and others,” “as the Board of Commissioners of Charities of the county of-Kings,” thus leaving out a part of the title of the board, and commencing with the individual names; this is unauthorized by statute.
    
      William Sullivan, for the defendant, respondent.
    I. The judgment recited in the execution never existed, and consequently the execution was not the mandate of the court, and would not even have protected the defendant had he executed it.
    It is a well settled rule of law that the identity of an office or public body is not affected by an act changing its name and increasing or diminishing its functions. It continues to be the same legal entity under another name. And consequently the omission of the words “ and Corrections ” after the word “ Charities ” in the title of the action in the supreme court, amounted, ¿tmost, to a misnomer which was not taken • advantage of by the answer, and was therefore waived. See Trustees of M. E. Church v. Tryon, 1 JDenio, 451 ; where a part of the corporate name was omitted in the title of the action.
    It follows that the action in , the supreme court was prosecuted in the name of the proper official body, and that the insertion of the names of individuals as members of the board was surplusage. Bee also Commissioners of Excise of Saratoga Co. v. Doherty, 16 How. Pr. 46 ; Pomroy v. Sperry, id. 211.
    No judgment was■ rendered and docketed against Messrs. Henry, Shipman and Ryan, individually.
    An execution cannot lawfully be issued unless the judgment which it recites has in fact been rendered, and docketed. An execution is a judicial writ, and must, to be valid, be based upon a judgment of some court. Otherwise it is not the mandate of the court, but simply that of its author. See Code, § 3343, subd. 2 ; Hathaway v. Howell, 6 Supm. Ct. {T. & C.) 453, 455.
    II. And if a personal judgment had been rendered against Messrs. Henry, Shipman and Ryan, it would have been void for want of jurisdiction of the court to render it, and the sheriff would not have been bound to execute a process based thereon.
    Such a judgment would have been null and void (Commissioners, &c. v. Casiatir, 62 How. Pr. 113 ; Jobbitt v. Giles, 22 Hun, 274. See Ferguson v. Crawford, 70 N. Y. 253 ; Ormsby v. Jacques, 12 Hun, 443). The defendant would not have been bound tp execute a process based upon such a judgment.
    A sheriff is not bound to execute a process issued to enforce avoid judgment; for a process although regular in form is nevertheless null and void if the judgment on which it is based is null and void.
    In an action brought against a ministerial officer for damages for neglecting to execute a process issued to him, the plaintiff must allege and prove a valid existing judgment to support the process (Earl v. Camp, 16 Wend. 562; Horton v. Hendershot, 1 Hill, 118 ; Cornell v. Barnes, 7 Hill, 35; McDonald v. Bunn, 3 Den. 45 ; Ginochio v. Orser, 1 Abb. Pr. 433; Tucker v. Malloy, 48 Barb. 85 ; Forsyth v. Campbell, 15 Hun, 235; Josuez v. Conner, Sheriff, 7 Daly, 452, per Daly, Ch. J. ; Goodwin v. Griffis, 88 N. Y. 629).
    The party who issues a process for the enforcement of a void judgment, or for the collection of a valid judgment, but which does not exist at the time, is liable to the party against whom the process is issued in case the sheriff executes it (McGuinty v. Herrick, 5 Wend. 241 ; Lewis v. Palmer, 6 Wend. 367 ; Earl v. Camp, 16 Wend. 562; Rnckman v. Cowell, 1 N. Y. 505 ; Oberwarth v. McLean, 7 Daly, 70; Guilleaume v. Rowe, 48 Super. Ct. [16 J. & S.] 169).
   Per Curiam.

The action in which the execution was issued to the defendant was commenced against this plaintiff in the name of “ Charles J. Henry, William M. Shipman and James Riley, as the Board of Commissioners of Charities of the County of Kings.” The tittle of the plaintiffs as contained in the summons and complaint, and a reference to the statutes under which the action was commenced, and all the facts connected therewith, show that the action was intended to be and that it in fact was an action byi( the Board of Commissioners of Charities and Correction of the County of Kings,” a corporation authorized to sue and be sued by that name. The judgment in favor of this plaintiff for his costs in that action was entered and docketed against “ William M. Shipman, Charles J. Henry and James Riley as the Board of Commissioners of Charities of the County of Kings.” That judgment and docket did not authorize an execution against the three persons named individually, and hence, although the execution was regular on its face, it was in fact unauthorized and void, and the sheriff could refuse to execute it, and can therefore successfully defend this action.

The judgment should be affirmed, with costs.

All concur, except Buger, Ch. J., Rapadlo and Andrews, JJ., not voting.  