
    Bacon v. Cropsey
    
      Responsibility of Sheriff. — Irregular execution. — Measure of Damages.
    
    It is no defence to an action against a sheriff for a false return to an execution, that the writ was irregularly issued within thirty days from the rendition of the judgment.
    In an action for a false return, the sheriff is liable for the full amount indorsed on the execution, if the defendant had sufficient property; the sheriff cannot be permitted to show that so much was not due upon the judgment.
    Appeal from the general term of the Supreme Court, in the third district, where a judgment rendered in favor of the plaintiff, in a case tried before the court, without a jury, had been affirmed.
    This was an action against the defendant, as sheriff of the county of Rensselaer, for a false return to a writ of execution issued out of the late court of common pleas of that county, at the suit of the plaintiff against the firm of H. A. & G. R. Benton.
    The complaint alleged, that on the 25th June 1847, the plaintiff recovered a judgment in the late court of common pleas of Rensselaer county, against H. A. & G. R. Benton, for the sum of $4000 debt, and $32.72 damages and costs; and that, upon the same day, he issued *and delivered to the defendant, then being _ o r * -i a/» sheriff of the said county of Rensselaer, a writ of execution for the collection of $2032.72, with interest from that day; by virtue whereof the defendant, on the same day, levied upon the property of the defendants in the writ, of sufficient value to satisfy the same, but after-wards returned that he could not find any property of the defendants whereof he could make any part of the moneys he was thereby directed to levy; by means whereof, it was alleged, that the plaintiff was prevented from enforcing the payment or collection of $1542.93 thereof, with interest from the 8th September 1847, for which he demanded judgment against the sheriff.
    The answer of the defendant did not controvert any of the averments of the complaint; but alleged, that the execution was issued, and delivered to the defendant, as sheriff, within less than thirty days next after the rendition of the judgment, without authority of law, or the consent of the defendants in the writ, or either of them, and was, therefore, illegally issued. That at the time it was issued, there was nothing due from the defendants in the judgment, to the plaintiff; and denied, that there was then due to the plaintiff in the judgment and execution, the sum of $1542.93 claimed- by him. And it also averred, that the plaintiff had received promissory notes and bills of- exchange, and demands against third’ persons, to the amount of $1000, which the defendant claimed as a set-off.
    The plaintiff, in his reply, conceded that the execution was issued, and delivered to the defendant, as sheriff, within thirty days after the rendition of the judgment, but insisted, that it was with the consent of the defendants therein, and by authority of law; that at the time there' was due to the plaintiff, upon the judgment, the sum of $1542.93; and that the plaintiff had not received any promissory notes or bills of exchange, as alleged in the answer, which could be set off in this action.
    On the trial, before Harris, J., without a jury, the plaintiff’s counsel read the pleadings, and rested; whereupon, the defendant’s counsel insisted, that they were not sufficient to maintain the action; the learned judge, however, decided:
    
      1. That although the execution, upon its'face, showed that it was issued within less than thirty days from the recovery of "the judgment, yet, the defendant, to whom it was directed and delivered, was bound" to execute it, and could not, for his defence, insist that it was irregularly issued:
    2. That the plaintiff was not bound to prove that the execution was issued before the expiration of the thirty days, the time required by law before its issue, by the consent of the defendants in the judgment:
    3. That the defendant, in order to reduce the recovery in this action, could not show that the direction on the execution was to levy more than was due to the plaintiff *upon his judgment. The defendant excepted to these rulings. [ *197
    The defendant then offered to show that the execution was issued, in violation of a stipulation given by the plaintiff to the defendants in the judgment; and that the latter, before the expiration of thirty days from the rendition of the judgment, had assigned all their property for the benefit of their creditors. The judge overruled this offer, to which an exception was taken.
    Judgment was, thereupon, rendered in favor of the plaintiff, for the amount of his claim; which having been affirmed at general term, the defendant took this appeal.
    
      Stow, for the appellant.
    
      Romeyn, for the respondents.
   *Jewett, J.

(after stating the pleadings.) — The „ first question arises upon the decision of the judge, on the trial of the cause, that as the defendant had not, in his answer, denied either allegation contained in the complaint, and a cause of action having been sufficiently alleged in the complaint, the plaintiff was primó facie entitled to recover, without giving any evidence of the truth of his allegations — not being controverted by the answer, they must, for the purposes of this suit, be taken as true. I think, the decision was right: § 144 of the code of 1848 provides, that every material allegation of the complaint, not specifically controverted by the answer, as prescribed in § 149, shall, for the purposes of the action, be taken as true. In effect, it was so adjudged in Walrod v. Bennett (6 Barb. 144).

The defence set up by the answer is, first, that the execution was issued within thirty days after the rendition of the judgment, without the consent of the defendants therein, and without the authority of law; secondly, that there was nothing due from the defendants, at -the time of issuing the execution, nor was the *sum of -* $1542.93 then due to the plaintiff, as claimed by him; and, thirdly, that the plaintiff had received promissory notes and bills of exchange, and demands against third persons, to the amount of $1000, which the defendant claimed should be set off against the plaintiff’s demand.

As -to the first branch of the defence, it appeared by the complaint, that the execution was issued within thirty days after the recovery of the judgment; the answer sets up, that it was illegally issued, because the same was so issued without the consent of the defendants therein; the reply controverts this allegation; it says, it was legally issued, with the consent of the defendants therein. The judge decided, that the plaintiff was not bound to prove that the defendants in the execution consented to its being issued within the thirty days. In that there was no error, for until set aside, although issued without the defendants’ consent, the process was valid, and no one could take advantage of such an irregularity but the defendants in the execution. The judge was clearly right in his decision, that the defendant was bound to execute it, and could not take advantage of the fact, in his defence, that it was issued within the thirty days. (Jones v. Cook, 1 Cow. 309; Ross v. Luther, 4 Id. 158; Ontario Bank v. Hallett, 8 Id. 192; Kimball v. Munger, 2 Hill 364; Green v. Burnham, 3 Sandf. Ch. 110; Pierce v. Alsop, 3 Barb. Ch. 184; Berry v. Riley, 2 Barb. 307; Williams v. Hogeboom, 8 Paige 469; Parmelee v. Hitchcock, 12 Wend. 96; Stone v. Green, 3 Hill 469; Riker v. Mason, 4 Sandf. Ch. 351.)

The distinction is between void and voidable process; the latter is a justification to the officer, until it is set aside by the party. One strong reason why the sheriff shall not take advantage of the error in issuing the process is, that, for aught that appears, the party does not wish to avail himself of it. (Ames v. Webbers, 8 Wend. 545.) But process which is void, the officer is under no obligation to execute, and he may, in an action brought against him for refusing to execute it, set up its invalidity (Cornell v. Barnes, 7 Hill 35.)

*1 think, the judge was right, in holding that ^ ^ the defendant could not be permitted, in order *- to reduce damages, to show that the execution directed the collection of a greater sum than was due to the plaintiff. It was for a sum less than the amount of the recovery, and the complaint alleges that the defendant levied on property of the defendant, by virtue of it, sufficient in value to satisfy that amount, which fact, for the purposes of this suit, we have seen, is admitted to be true — clearly, that sum, with the interest, must be taken as the measure of damages which the plaintiff sustained by the false return made by the defendant.2

The exclusion of the evidence offered by the defendant, to show that the execution was issued in violation of a stipulation given by the plaintiff to the defendant in the execution, and that they made an assignment of all their property for the benefit of their creditors, before the expiration of thirty days after the judgment was docketed, was right. ' In the first place," if this execution was issued in violation of a stipulation between the parties to it, it was merely an irregularity, of which only the defendant in the execution could take advantage; and besides, this branch of defence is not set up in the defendant’s answer. I think, this judgment should be affirmed.

Judgment affirmed. 
      
       See Watson v. Brennan, 66 N. Y. 621, where it was ruled, that in an action against the sheriff, for a false return of nulla bona, the burden of showing that there was sufficient property upon which, by the exercise of due diligence, the sheriff could have levied, is upon the plaintiff.
     
      
       Where a sheriff after a levy on property sufficient to satisfy his execution, returns it unsatisfied, he is primá facie liable to the plaintiff, to the amount of the judgment. America Brass and Copper Co. v. Babbitt, 74 N. Y. 395.
     