
    Joseph J. Prividi, Appellant, v. William J. O’Brien, Respondent.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Failure of surety to surrender principal as mitigating damage in action against sheriff for false return.
    In an action by the assignee of a surety against a sheriff for damages sustained by reason of a false return to an execution against the person the answer alleged as a partial defense that the sheriff advised said sureties to surrender their principal. On demurrer to said defense;
    Held, a good partial defense in mitigation of damages. Sureties should not hold the sheriff for damages which could have been avoided by a surrender of their principal as provided by sections 591 and -592 of' the Code of Civil Procedure.
    If a partial defense is sufficient in mitigation of damages a demurrer thereto should be overruled.
    Appeal by plaintiff from an interlocutory judgment of . the City Court of the city of .New York, overruling plaintiff’s demurrer to the separate defense contained in paragraph IV of the answer.
    Joseph E. Bullen, for appellant.
    Edward C. Moen, for respondent.
   Freedman, P. J.

The prior history of this case sufficiently appears in the report of the case of G-arofalo v. Prividi, 43 Misc. Rep. 359. The present action arises out of the claim of one of the sureties of the plaintiff against the sheriff for damages sustained by reason of a false return made by the sheriff to an execution issued against the person of the plaintiff, which claim was assigned by said surety to the plaintiff. Paragraph IV of the answer, containing the defense demurred to, stripped of everything except the essential allegation, states as a partial defense that the plaintiff and the said surety were in the sheriff’s office after the commencement of the action against the sureties and before the time to answer in said action had expired, that the said sureties were then and there advised of the manner in which they could relieve themselves from further liability and that notwithstanding such information and advice they wholly neglected to surrender their principal to the defendant as required by law. It seems to me that this is a good partial defense in mitigation of damages within the reasoning in Cozine v. Walter, 55 N. Y. 304. True, in that case the sheriff by his own act prevented the surety from procuring his exoneration, whereas in the case at bar the facts alleged show an endeavor of the sheriff' to have the sureties surrender their principal in a legal manner and the failure of the sureties to surrender him. They were not bound to do so if they did not care to reduce the damages for which they were liable in case of no surrender. But they should not be permitted to ?hold the sheriff for damages to themselves which they would have avoided by a surrender of their principal as provided in sections 591 and 592 of the Code of Civil Procedure when such surrender was advised by the sheriff and they were able to make it. Equity requires that a man shall do everything in bis power to make the damages he seeks to recover from another as light as possible. There is nothing in the decision of Garofalo v. Prividi, supra, which conflicts with these views. The defense demurred to being sufficient as a partial defense in mitigation of damages, the demurrer thereto was properly overruled. Morse v. Press Pub. Co., 63 App. Div. 61.

The judgment should he affirmed, with costs.

Gildersleeve and MacLean, JJ., concur.

Judgment affirmed, with costs.  