
    Carter v. Stevens.
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.)
    Constables—Authority to Release Levy.
    A constable who has levied on personal property, under an execution, being the agent of the execution creditor, has no power, when indemnified by him, to release the property to a claimant thereof; and a judgment in an action by a claimant for the property, awarding it to the claimant, entered in pursuance of an offer made by the constable at the claimant’s instance, without the knowledge of the constable’s attorneys or of the execution creditor, will be set aside on motion.
    Appeal from special term, Cattaraugus county.
    Action by Lad wick H. Carter against William Stevens, a constable. By a written agreement with defendant, plaintiff took judgment, and received property levied upon. Afterwards a motion to set aside such judgment and transfer of property was sustained. Plaintiff appeals.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      Henderson & Wentworth, for appellant. Ansley & Davie, for respondent.
   Macomber, J.

In the month of March, 1884, one George Carnahan procured a judgment before a justice of the peace against Delos Carnahan, upon which an execution was delivered to the defendant, as constable, for the collection of the amount thereof. The defendant levied upon certain personal property in the possession of the judgment debtor. The plaintiff, claiming to own such property so levied upon, began this action to recover the possession thereof, and, at the instance of the judgment creditor, an answer was interposed, and an issue joined thereon. This defendant was indemnified by the judgment creditor against all loss and expense on account of such levy and suit. Shortly before the cause came on for trial at the circuit, the defendant, who had been placed in jail as a disorderly person, at the instance of the plaintiff, did, under a promise that the plaintiff would secure his release, make an offer of judgment for the return to the plaintiff of the personal property thus levied upon. In pursuance of such written offer, judgment was finally entered, awarding the property to the plaintiff. This was done without the knowledge, either of the real party in interest, (Carnahan,) or of the attorneys of record of the nominal defendant. The motion to set aside such judgment and transfer of property was promptly made, and, in our opinion, was properly granted at the special term. A condition of the order was inserted to the effect that Carnahan should indemnify the defendant against all costs or damages that might be recovered against him by reason of further prosecution of the action. This defendant, in levying upon the personal property, in order torn ake the amount of the execution, was the agent of the judgment creditor; and he had no right, so long as he was indemnified by his principal, to turn the property over to the claimants. The order appealed from should be affirmed, with $10 costs and disbursements. All concur."  