
    COURT OF APPEALS.
    Elijah H. Kimball, executor, &c., of Ellen Le Roy, deceased, appellant agt. Richard B. Connolly, respondent.
    The county clerk of the city and county of New York, is not liable for damages re suiting from errors, inaccuracies or mistakes in his certificates of searches, under the act of 1853 (Sess. Laws 1853, p. 265), unless the loss to the party by which such damages accrued, is the direct consequence of such error or mistake.
    Where the owner of real estate in the city of New York, for the purpose of procuring a loan of money thereon, caused the usual written requisition to the county clerk to search for judgments against the property, to be delivered to him, who made the requisite search, and certified its correctness in the usual manner, and thereupon the loan of money was obtained on bond and mortgage upon the premises, and subsequently it was ascertained that a certain judgment upon the property had been overlooked and not returned by the clerk, upon which judgment the premises were thereafter sold, and the owner was compelled to pay some $100, over and above the amount of the judgment, in order to compromise and settle the matter:
    
      Held, that the county clerk was not liable in damages for the loss to the owner, which had thus occurred. His loss occurred from the non-payment of the judgment, and not from the error in the clerk’s return. He obtained the loan for which he applied, and nothing was abated from it on account of this incumbrance.
    
      September Term, 1866.
    Appeal from an order of the supreme court at general term, in the first district, reversing a judgment rendered at the circuit, on a trial before a justice of that court, without a jury, and granting a new trial, with costs to abide the event.
    The plaintiff, at the said trial, recovered judgment for $474.98 damages against the said defendant, for neglecting, in his official capacity, as clerk of the city and county of New York, to return to a requisition for a search for judgments in his office as such clerk against Moses Le Roy, a certain judgment for $26.97, in favor of Nelson Smith, against the said Moses, docketed in his office, and constituting a lien upon certain premises in the city of New York, owned by Ellen Le Roy, deceased, of whom the plaintiff is the executor.
    It appears from the conclusions of fact, certified by the judge who tried the action, that the judgment was docketed in the said clerk’s office, against Moses Le. Boy, on the 6th day of February, 1857, and then became a lien upon a house and lot of land, known as No. 269 East Twelfth street, in the city of New York, of which the said Moses was the owner; that the said Moses conveyed the said premises to the said Ellen Le Boy, in her lifetime, on the 30th day of March, following, and that she continued to be the owner thereof until her death, which occurred in December, 1858.
    She applied in August, 1858, to the Jefferson Insurance Company, for a loan of money, upon the security of the said premises, and for the purpose of an examination of her title, a lawyer was employed, to be paid by her, who was to prepare an abstract of the title for the satisfaction of the insurance company.
    The lawyer delivered a xvritten requisition, in pursuance of his emyloyment, to the defendant, in his official capacity, requiring him to search for judgments against Moses Le Boy, including the time when the said judgment became a lien; that the defendant, as such clerk, returned on the 3d day of September, 1858, certain incumbrances, but wholly omitted to return the said judgment for $26.97, which was then a valid and subsisting lien; that the defendant was paid his fee for the said search by the said Ellen ; that she obtained a loan of $4,000 from the said insurance company upon the security of a mortgage executed by her upon the said premises, and upon the faith of the certificate of the defendant, as such clerk, to the existence of such judgments only as he had returned upon the said search; that the money, as far as necessary, was applied to the satisfaction of the liens against the said premises so returned, and there was more than sufficient to satisfy them, and also the said judgment for $26.97 ; that in July, 1858, Nelson Smith issued an execution on his said judgment against Moses Le Boy, for $26.97, by virtue of which the said premises were sold by the sheriff of the city and county of New York, on the 8th day of September, 1858, to the said Smith, as purchaser, for the sum of $60. The premises were not redeemed, and the said sheriff executed a conveyance to Smith, on the 10th day of December, 1859, which passed the whole title owned by the said Moses, at the the time of the docketing of the judgment.
    The purchaser, Smith, by virtue of his title so obtained, instituted summary proceedings before a justice of the peace, and entered into full possession of the premises on the 30th day of December, 1859.
    The plaintiff, as the executor of the said Ellen Le Boy, who died in December, 1858, made an amicable settlement with Nelson Smith, who conveyed the said premises to the plaintiff as executor and trustee, under the will of the said Ellen, for the consideration of $400, on the 29th of March, 1860, which was the lowest sum for which a reconveyance could be obtained; the premises then being worth $6,000.
    The judge also found that the plaintiff was ignorant of the judgment, and of the sheriff’s sale, until Smith had obtained the title ; and that the said Ellen was ignorant that the judgment was a lien upon the premises. The evidence shows that she knew of the existence of the judgment before Smith took any proceedings to sell the premises under his, judgment and execution.
    The judge found, as a conclusion of law, that the plaintiff was entitled to recover from the defendant the said sum of $400, so paid to obtain a reconveyance, together with interest, amounting in all to the sum of $474.98, for which sum the plaintiff had judgment.
    The defendant excepted to the findings of the judge, both as to the facts and the conclusion of law. The general term of the supreme court, upon appeal, as before stated, reversed this judgment, and awarded a new trial, with costs to abide the event.
    The plaintiff appeals from the order of the general term, and stipulates that if the order be affirmed on this appeal, judgment absolute shall be rendered against him.
    B. H. Underhill, for the appellant.
    
    Charles H. Glover, for the respondent.
    
   Leonard, J.

An act of the legislature, passed in 1853 (Sess. Laws, p. 265), provides that the county clerk shall have a sufficient number of competent searchers in hisoffice; shall cause searches, when ordered, to be made without delay; shah certify to the correctness of his searches, and shah be held legahy liable for ah damages resulting from errors, inaccuracies or mistakes, in his return. The plaintiff insists that this statute casts upon the defendant a legal liability for the loss sustained by the estate of his testatrix. . If that loss is the direct consequence of the omission of the defendant to return the judgment against Moses Le Boy, in favor of Smith, the position of the plaintiff is sound. It is impossible, however, to hold such a conclusion. Mrs. Le Boy took no action in consequence of the omission of the clerk’s return to the search. She bought no property, and parted with nothing of value by reason of the erroneous return. The insurance company might have been subjected to damage by the loss of the security upon which they were induced to part with their money, relying upon the accuracy of the defendant’s return. But that is not the case of Mrs. Le Boy. Her loss occurred from the non-payment of the judgment, and not from the error in the clerk’s return. She obtained the loan for which she applied, and nothing was abated from it on account of this incumbrance. It was no injury, of which she can complain, to have the money paid to herself on effecting the loan, instead of having some part of it applied to the satisfaction of an outstanding judgment.

However probable it maybe that the judgment would have been paid off by the insurance company out of the proceeds of the loan if it had been returned upon the search, it is impossible to declare at this time that it would have certainly been so applied. Her object in causing the search to be made, was not defeated by the omission to return the judgment. She did not seek information about her title for any purpose but that of obtaining the loan. It is no ground of complaint that she was not awakened by the return to take action for the removal of this judgment, The knowledge which she would have derived from the . return of it, would have been mere incidental; and it is uncertain whether the return, or the knowledge thereby acquired, would have been applied by Mrs. Le Boy to any purpose whatever. No one can say what actually would have been done under a different state of facts from those which actually occurred. It is no answer to say that she could, or that she might have paid the judgment or prevented a sale; it does not make it certain that it would have been done. The payment was not a ne'cessary consequence of a correct return by the clerk, and without such a direct and necessary result to flow from Ms act or omission, the defendant cannot be made chargeable with damages.

The rule as to damages, under this statute, is not different from that prescribed by the common law. When the damages are uncertain, indefiMte, and incapable of being fixed, as the result of an act, negligence or omission, none can be imposed. Had a different rule been contemplated by the legislature, it would have been necessary to have imposed a fixed penalty; but the statute leaves it open for such damages as flow from the error, inaccuracy or mistake of the clerk, and can be ascertained to have been actually sustained.

The order appealed from should be affirmed, with costs, and the judgment be made absolute against the plaintiff.

All the judges concurring.

Judgment accordingly.  