
    Byron Rice, Resp’t, v. Thomas D. Penfield, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1888.)
    
    1. Sheriff—Liability for the acts of his deputy.
    Where an execution was delivered to a deputy sheriff who levied upon some cattle and hired one Simpkins to care for them until they were afterward taken away by the deputy, the evidence being undisputed that the deputy in hiring Simpkins assumed to act for the sheriff, who, when asked to pay the debt, instead of repudiating the act of the deputy, promised to pay at a later date, Held, that under the evidence the sheriff became personally liable for the debt, and plaintiff (Simpkins’ assignee) is entitled to recover unless an action is barred by section 385, Code Civil Procedure
    2. Same—Code Civil Procedure, § 385—Actios sot barred by.
    Section 385 provides that “ an action aga'nst a sheriff, or coroner, upon a liability incurred by him, by doing an act in his official capacity, or by the omission of an official duty, except the non-payment of money collected upon an execution, must be brought within one year.” Held, that the term “upon a liability incurred by him by doing an act in his official capacity,” refers to a liability incurred by official malfeasance or misfeasance, but not to a liability arising out of a mutual contract voluntarily entered into by a sheriff for his own convenience with another. The sheriff might have personally performed this service, but he chose to hire another, and the remedy for his breach of this obligation is not barred by the lapse of one year.
    
      Appeal from a judgment of the Oneida county court entered in the Oneida county clerk’s office December 30, 1887, which reverses a judgment of a justice of the peace of the city of Rome whereby the plaintiff was nonsuited. The action was brought against the defendant, who was sheriff of Oneida county at the time the cause of action accrued, to recover the value of feeding certain stock upon which one Henry 0. Conrad, defendant’s deputy, had levied by virtue of an execution issued out of the supreme court and which he placed in the plaintiff’s assignor’s keeping after making such levy On the trial it was proven that Mr. Conrad, as the defendant’s deputy, received an execution upon which he reduced the stock in question to his possession, as such deputy by a levy. He then made an arrangement with Mr. Simpkins, plaintiff’s assignor, to feed it for him, saying to him, ‘ e I am deputy sheriff, and it will be all right.” Mr. Simpkins subsequently presented his bill to the defendant, and talked with him on several occasions about it, on one of which the defendant told Mr. Simpkins “he would arrange it;” also that he would pay it as soon as he settled with Sanger. It also appeared that the cause of action arose more than a year before the commencement of the action. The justice nonsuited the plaintiff, and the judgment of nonsuit was reversed by the county court of Oneida county; and from the latter judgment this appeal is brought.
    D. E. Powers, for resp’t; McMahon & Curtin, for app’lt.
   Follett, J.

Appeal from a judgment of a county court reversing a judgment of nonsuit rendered in a justice’s court.

In February, 1885, the defendant was the sheriff of Oneida county and one Henry C. Conrad was his deputy. In that month an execution was issued out of the supreme court and delivered to said deputy for collection. The deputy levied upon cattle and hired one Simpkins to care for them until they were afterwards, and during the same month, taken away by the deputy.

The evidence is undisputed that the deputy, in hiring Simpkins, assumed to act for the sheriff, who, when asked to pay the debt, instead of repudiating the act of the deputy, promised to pay the debt at a later date. Under the evidence, the defendant became personally liable for the debt, and the plaintiff (Simpkins’ assignee) is entitled to recover it unless an action is barred by the three hundred and eighty-fifth section of the Code of Civil Procedure, which provides that: “An action against a sheriff or coroner, upon a liability incurred by him by doing an act in his official capacity, or by the omission of an official duty,, except the non-payment of money collected upon an execution, must be brought within one year.”

The term “upon a liability incurred by him by doing an act in his official capacity,” refers to a liability incurred by official malfeasance or misfeasance, but not to a liability arising out of a mutual contract voluntarily entered into by a sheriff for his own convenience with another. The defendant might have personally performed this service, but he chose to hire another; and the remedy for his breach of this obligation is not barred by the lapse of one year.

The- judgment of the county court is affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  