
    Sigismund Hofheimer et al., Respondents, v. Patrick Campbell, Sheriff, etc., Appellant.
    (Argued December 3, 1874;
    decided December 15, 1874.)
    Where the allegations of a complaint are admitted by the answer and it is assumed, upon the trial of the action, that the facts stated in the complaint constitute a cause of action, no objection being taken by the defendant, or the attention of the court called in any manner to any defect therein, it is to be assumed that defendant conceded his liability, and the objection cannot be taken in this court for the first time, that the facts stated do not constitute a cause of action.
    In an action against a sheriff, to enforce the liability imposed by section 210 of the Code, in consequence of the failure to justify of plaintiff's sureties in an action for the claim and delivery of personal property, defendant’s answer alleged, that after the sureties failed to justify he retained possession of the property at the request of the defendant in said action, and afterward surrendered it to said defendant upon his agreement to relieve him from all liability. Held, that the facts alleged constituted no defence; that by excepting to the sureties the defendant in said action waived his right to reclaim the property (Code, § 210), and it thereupon became the duty of the sheriff to deliver it forthwith to the plaintiff, and any agreement with the opposite party to violate that duty was against public policy and void; that in the absence of allegations to that effect it could not be assumed that the plaintiff assented to the retention of the property, a.nd whether the sheriff retained it wrongfully or not it was his duty to deliver it to defendant after and in obedience to a judgment in his favor, and the discharge of that duty furnished no consideration for the promise to release.
    Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict, and affirming an order denying a motion for a new trial.
    This action was brought against' defendant, as sheriff of the county of Kings, to enforce the liability imposed upon him by section 210 of the Code, in consequence of the failure to justify of the sureties for the plaintiff in an action for the claim and delivery of personal property.
    The complaint alleged, in substance, that in August, 1869, an action for the claim and delivery of certain personal property was commenced in the Supreme Court, in which Alice K. Hager was plaintiff and Biehard C. Beamish, receiver, etc., was defendant; that the proper papers therein, including the undertaking, were delivered to the defendant herein, as sheriff of the county of Kings, who, by virtue thereof, took the property in question from the possession of the defendant therein ; that said defendant, within the three days prescribed by the Code, excepted to the sufficiency of plaintiff’s sureties and caused notice thereof to be served upon the sheriff; that said sureties failed to justify and no new ones were furnished, and, thereupon, the sheriff became liable therefor; that in February, 1871, a judgment was rendered in said action for the return of the property to the defendant in said action, or for the value thereof, and for $312.94 costs; that an execution was issued thereon and returned unsatisfied, and the judgment remains unpaid; that the claim and right of action against the sheriff (the defendant herein) were duly assigned to plaintiff.
    The defendant’s answer admitted the allegations of the complaint and set up as a defence that after the failure of the sureties to justify he, at the request of the defendant in that action, retained the property in his possession, and thereafter surrendered the same to said defendant; that it was agreed between them that such surrender and delivery was to be in full discharge and exoneration of all liability, on the part of the sheriff, and that by reason of said agreement he was released and discharged.
    Hpon the trial plaintiffs’ counsel moved the court to direct a verdict for the plaintiffs for the amount of the judgment in the replevin suit upon the ground that the answer set up no valid, defence. The court granted the motion and defendant’s counsel excepted. The jury, under such direction, rendered a verdict for such amount.
    
      Samuel Hand for the appellant.
    The agreement set up in the answer is valid and within the provisions of the statute. (2 R. S. [Edm. ed.], tit. 2, pt. 3, chap. 3, art. 3, § 58, p. 296 ; Turner v. Hadden, 62 Barb., 480 ; McGowan v. Deyo, 8 id., 340; Noble v. Kelly, Sheriff, 40 N. Y., 415; Griffiths v. Hardenberg, 41 id., 464; Chamberlain v. Bellar, 18 id., 115.) There was sufficient consideration for the agreement. (Code, §§ 206-215; Seaver v. Gennar, 10 Abb., 256.) The complaint does not state facts sufficient to constitute a cause of action. (Code, § 210; Craig v. Parkes, 40 N. Y., 181; Cady v. Sheldon, 38 Barb., 103; Mosher v. Hotchkiss, 3 Abb. Ct. Apps. Dec.; Van Duyne v. Coope, 1 Hill, 557; Decker v. Anderson, 39 Barb., 342.)
    
      D. P. Barnard for the respondents.
    The agreement set out in the answer, if made, is one taken colore officii, and is prohibited by law and void. (3 R. S. [5th ed.], 476, § 48 [59] ; Winter v. Kinney, 1 Comst., 365; Barnard v. Viele, 21 Wend., 88 ; Bk. of Buffalo v. Boughton, id., 57; Webber v. Blunt, 19 id., 188; Richardson v. Crandall, 48 N. Y., 348.)
   Church, Ch. J.

The facts stated in the complaint were all specifically admitted by the answer which also set up a release of the cause of action. The judge decided that the alleged defence was not valid, and directed a verdict for the plaintiff upon the facts thus admitted contained in the complaint, to which there was an exception. It is insisted that the attention of the court was not called to any defect in the complaint and that no such question can be urged here. The defect claimed is, that the complaint contains no allegation that the sureties taken by the sheriff were insufficient, and that the facts stated, viz., that they were excepted to and failed to justify, do not establish such insufficiency. I think this point cannot be taken here. It was assumed that the facts stated constituted' a cause of action. The defendant did not move for a nonsuit, but opened the ease to the jury upon his special defence, and when that was held invalid the attention of the court was not called to the complaint, or to the facts stated therein. From the case it must be assumed that the defendant conceded the liability of the sheriff upon the facts stated. (18 E". Y., 558-565.) If the objection had been taken at the trial, the complaint might have been amended or the additional facts supplied. Ibis a general rule in the trial of actions, that defects which if pointed out may have been supplied or avoided, will not be available on appeal. The counsel cites section 148 of the Code. That section merely provides that the objection that the complaint does not state facts sufficient to constitute a cause of action is not ■waived by the omission to raise,,the question by answer or demurrer, the effect of which is that such objection may be taken on the trial. In general such defects are waived if not taken by the pleadings or on the trial. The judge did not pass upon the question whether the liability of the sheriff was conclusively or prima facie fixed under section 210 of the Code, by an exception to the sureties, and their failure to justify; or, in other words, whether the failure to justify establishes their insufficiency for which the sheriff is made responsible, nor was the judge asked to decide this question, nor was his attention in any manner called to it. It would be manifestly unjust to permit an objection for the first time in this court which the party had every opportunity to present in the court below, and which if made might have been obviated. The question presented is not free from difficulty, but we think it is not available in this court.

The only question decided by the court below was, that the release set up in the answer did not constitute a defence, and we think that question was properly decided. The facts alleged were that after the sureties failed to justify, the sheriff, at the request of the defendant in the action, retained the possession of the property, that afterward he surrendered it to said defendant, and that when he surrendered it the said defendant agreed to release him from all liability. The Code (§ 210) provides that if the defendant excepts to the sureties, he cannot reclaim the property under the three day clause, and section 211 requires the sheriff, if not so reclaimed, to deliver it to the plaintiff unless claimed by a third person under section 216. It follows that by excepting to the sureties, which precludes reclamation, the defendant waives the latter remedy, and the mandate of section 211, to deliver the property to plaintiff, becomes imperative. The plaintiff has ten days after the sureties are excepted to, to give notice of the time and place of justification, which shall not be less than five nor more than ten days thereafter. There is no authority for retaining the property by the sheriff during this period. He must deliver it to the plaintiff at the end of three days. "We must presume that the legislature intended this result, because section 210 as originally enacted required the sheriff to deliver the property to the defendant if the sureties failed to justify. The object seems to have been to secure greater vigilance and responsibility on the part of the sheriff in respect to proper sureties, before executing the process. We were referred to section 215, as an authority for the sheriff to retain the property after exception. That section only requires him to keep it in a secure place “ and deliver it to the party entitled thereto,” and we have seen that the party entitled thereto, by section 211, is the plaintiff. This section does not qualify the directions of section 211.

Assuming this construction which is claimed to he the correct one by the counsel for the sheriff, we think the answer contains no defence.

1st. It alleges that the sheriff retained possession of the property at the request of the defendant. If it was alleged that this act was in consideration of the release it would be invalid, because it was a violation of duty. We have seen that the sheriff was required by statute to deliver the property to the plaintiff, and any agreement or arrangement with the other party to violate this duty would be void, and this would be so, whether within the statute prohibiting the taking of securities colore officii or not. It is clearly against public policy to permit public officers to receive any benefit, or to bargain, or make any arrangement for a violation of the duties prescribed by law. It is said that such an agreement could be made with the consent of the plaintiff in that action, and that such consent must be presumed. Ho such presumption can be indulged.. We are construing the defendant’s pleading. He is entitled to the benefit of all he alleges, and to the benefit of a fair and reasonable, and not a harsh or technical rule. He says that he retained the property at the request of the defendant, and does not allege or intimate that the plaintiff consented. If any presumption arises in respect to the plaintiff’s consent, it is against it, because we may infer that the party stated the defence as favorably as possible for himself.

2d. But retaining the property is not alleged as a consideration for the release. The additional allegations are, that afterward the sheriff delivered and surrendered the property to the defendant in the action, and that it was agreed that such surrender and delivery was to be in full discharge of the sheriff’s liability. The surrender is presumed to be after judgment in favor of the defendant, entitling him to a surrender, and it could therefore furnish no consideration for the release. It was the duty of the sheriff, whether he retained the property wrongfully or not, to deliver it to-the defendant in obedience to the judgment in his favor, and the discharge of this duty on the part of the sheriff could not create a consideration for the alleged promise to release him. So that in either view the facts stated in the answer constituted no defence.

The sheriff has a remedy against the sureties, and if they are unable to respond it may be inferred that he was not sufficiently vigilant when he approved them. Instead of directing a verdict, the more regular mode would have heen to order judgment upon the pleadings; but no such point was made, and it is not material.

The judgment must be affirmed.

All concur.

Judgment affirmed.  