
    HASTINGS, Constable, v. NAGEL et al.
    (Supreme Court, General Term, Second Department.
    December 10, 1894.)
    Replevin—Against Sheriff—When Affidavit of Claim is Necessary.
    Plaintiff, a constable, levied on goods in the store of the execution debtor, and then left them with the debtor’s clerk, taking a receipt which recited that the clerk held the goods in storage. Held, that the goods were in the possession of the clerk as bailee, and were not merely in his custody as the plaintiff's servant; and therefore Code Civ. Proc. § 1710, providing that no action of replevin shall be maintained against a sheriff unless plaintiff delivered to him an affidavit specifying his claim as required by section 709, applies.
    Appeal from Kings county court.
    Action by Samuel W. Hastings, as constable, against Jacob Nagel and others, substituted in place of John Courtney. There was a judgment in favor of defendants, and plaintiff appeals.
    Affirmed.
    Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
    Herman Vogel, for appellant.
   CULLEN, J.

This is an appeal from a judgment of the county court of Kings county in favor of the defendant, entered upon the verdict of a jury directed by the court. The main facts are not disputed. On a justice’s judgment against one Viemeister an execution was issued to the plaintiff as constable. He levied on 44 clocks in Viemeister’s store. He did not take the clocks away, but left them with one Herring, a clerk of Viemeister’s, taldng the following receipt:

“Brooklyn, December 23, 1891.
“Received from S. W. Hastings, constable, forty-four assorted clocks, now in store of premises No. 1131 Broadway, Brooklyn, to be held as safe-keeping in storage, to be called for by me. Ludwig Herring.”

Subsequently the F. Kroeber Clock Company brought an action in the supreme court against Viemeister and Herring to recover possession of property, including the clocks in suit. Under a writ of replevin in that action the sheriff took the clocks. The plaintiff then brought this action against the sheriff for conversion of the clocks levied on, and the present defendants were substituted instead of the sheriff. We think that the verdict was properly directed for the defendants. The liability of the defendants in this action is but the same as that of the sheriff had they not been substituted in his place. We concede that the plaintiff made a valid levy on the clocks, and acquired a property therein sufficient to maintain an action against any wrongdoer who interfered with them. We may also concede that the title of the plaintiff would prevail against that of the Kroeber Clock Company, the plaintiff in the replevin suit, though the nature of the clock company’s claim of title does not appear in this record. But such facts do not determine the question of the plaintiff’s right to maintain this action. In the replevin suit the sheriff was directed to take the goods described from the possession of Viemeister and Herring. The warrant did not authorize the sheriff to take the property from any other person than the defendants, but it did protect him in taking it from the defendants, no matter to whom the property belonged; and no action against him could be maintained except after affidavit of claim. King v. Orser, 4 Duer, 431; Bullis v. Montgomery, 50 N. Y. 353. There can be no question that the property was in the possession of Herring. Herring was not the servant of the plaintiff, having mere custody of the property, as distinguished from possession. He was a bailee of the property. The receipt given to the plaintiff establishes that fact. Hence the case of McDougall v. Travis, 24 Hun, 590, is not in point. The plaintiff had a plain remedy. Under section 709 of the Code he could deliver to the sheriff an affidavit specifying his claim. If the chattels were not delivered up to him, he could then, under section 1710, maintain his action against the sheriff for the seizure. But that section expressly provides that no action shall be maintained against the sheriff except as therein prescribed. The judgment and order denying motion for a new trial, appealed from, should be affirmed, with costs. All concur.  