
    GOLDMAN et al., Respondents, v. ROCCA, City Marshal, Appellant.
    (Supreme Court, Appellate Term.
    February 4, 1904.)
    Action by David Goldman and another against Luigi A. Rocca, as one of the marshals of the city of New York. From a judgment of the Municipal Court for plaintiffs, defendant appeals. Affirmed. Fulton McMahon (Henry C. De Witt, of counsel), for appellant. Stanislaus N. Tuck-man, for respondents.
   DAVIS, J.

This action was brought by the plaintiffs against the defendant to recover damages for defendant’s neglect of duty as a marshal in failing to properly levy and collect under an execution issued to him in an action in the Municipal Court of the city of New York, First judicial district. The judgment was rendered, after hearing, on conflicting testimony as to matters of fact, and there appears no good reason upon the record to reverse it. Judgment affirmed, with costs.

FREEDMAN, P. J., concurs.

MacLEAN, J. (dissenting).

On Saturday, May 16, 1903, the plaintiffs, through their attorney, Mr. Tuckman, issued execution for $194.50 against one Herman Rosenberg to the defendant, a city marshal, who the same day levied upon goods amply sufficient to satisfy the execution, and received $50 on account, with promise of payment in full from the judgment debtor on Monday. On Monday, however, the marshal was stayed by the filing and service of an undertaking, approved by a justice, with a notice of appeal. To the sufficiency of the' sureties the attorney excepted, and nothing more till the 25th, when he wrote the marshal that the sureties had failed to appear and justify, and requested him to make a levy the following day. Even had the stay been lifted, which it was not by mere failure of appearance and justification of the sureties, the following day was too late, as in the mean season, while the ¡ plaintiffs’ attorney let the stay hinder the defendant, another marshal came in under other process and sold the goods. In fact, the plaintiffs’ attorney let the stay bide until July 7th, when it was vacated by order upon his affidavit. Now the plaintiffs -have a judgment against the defendant as for his neglect, to which they are ,< not entitled, and which should be reversed. The . marshal did no wrong in not oreaking up the debtor’s place on Saturday, if he was willing to run the risk of nonremoval of the goods till ’ ;■ Monday. On Monday his hands were tied, and i the lawyer let them stay so until long after ■' the marshal could do anything. Were it a point ; now to be considered, which it is not, upon Mr. Tuckman’s statement in his affidavit for the vacation of the stay and as a witness upon the trial of this cause, there is enough to show • that after the levy the lawyer gave directions to the marshal, which on the one hand were oppressive and erroneous, and on the other went to releasing the defendant. Whether the marshal put in a keeper, or the keeper was temporarily absent, is immaterial herein, excepting as to the taxation of due disbursements, /' since it is undisputed that the levy was good, / and the property levied upon was ample, when ) the marshal was stayed, and kept stayed. The j judgment should have been the other way, and / now should be reversed.  