
    EDWARD W. DAVIS, Respondent, v. PETER BOWE, as Sheriff, &c., Appellant.
    
      Decided April 7, 1884.
    
      Sheriff—action for failure to return execution.—Judgment—conformity to pleadings and proofs.
    
    In an action against the sheriff, the complaint alleged the failure of the sheriff to make return of the execution within the statutory time, and also alleged that he had collected a large part of the judgment, which be refused to pay over, viz.: more than $1,500. The answer alleged that the sheriff had collected said sum, which he held subject to his fees, and that he had delayed making his return pending the decision of the judge to whom he had applied to tax his fees. The proof showed the above facts, and that after the commencement of the action the sheriffs’ fees were duly taxed. Evidence was also received that the sheriff had actually levied on sufficient property to pay the judgment'in full and his fees as so taxed, which fact was contested by defendant. The jury gave plaintiff a verdict of the full amount of his judgment. Defendant contended that the judgment was not secundum allegata et probata, and that plaintiff, not having a cause of action at the time of commencement of the action, could only recover nominal damages.
    
      Held, untenable, and that the judgment must be sustained.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal from judgment of special term on verdict rendered in favor of the plaintiff for $2,475.53 and interest, and from an order denying defendant’s motion for a new trial.
    
      Two causes of action are stated in the complaint: 1st. For neglecting to return an execution. 3d. For neglecting to pay over a sum collected, alleged to have been more than $1,500.
    Further facts appear in the opinion.
    
      Charles F. McLean, for appellant.
    The defendant submits that it is perfectly well settled and clear that plaintiffs cannot recover except: 1st. Secundum allegata et probata. 3d. Upon a cause of action existing at the time of the commencement of the action thereon.
    I. On the first cause of action the plaintiffs could recover only the damages they had sustained by reason of the non-return of the execution. The execution was issued April 6, 1883. The notice of taxation of the sheriff’s bill was for June 3, 1883, within the lifetime of the execution. The action must have been commenced before July 13, 1882, as the verification of the answer was on that day. The fees, &c., were not settled until March 16, 1883. While the plaintiffs made out a prima facie case by proving the judgment, issuing of the execution and its non-return, it appears that at the time of the commencement of the action, say June 23,1882, the fees, etc., of the sheriff had not been adjusted, the amount to be returned with the execution had not been liquidated, and so the plaintiff has sustained only nominal damages.
    II. On the second cause of action, it is clear that the plaintiff can recover only for money had and received, and not lor a neglect to levy, omission to sell, failure to return, or for any other neglect, omission or failure of the defendant, except to pay over.
    III. Testimony to show what property was levied upon was clearly immaterial, etc., in an action for money had and received. The ruling allowing testimony of an alleged omission or neglect of the sheriff in an action for failure to return was erroneous.
    
      Warren & Ethridge, for respondents.
   By the Court.—O’Gorman, J.

On April 6, 1883, the plaintiff recovered judgment against Henry C. Brooks in the supreme court of this state, for $3,370.53. On that day an execution'against the property of the judgment debtor was duly issued and delivered to the defendant as sheriff. The plaintiff complains that the defendant failed to make return for more than sixty days after said delivery of the execution to him, and had not made return before the commencement of this action. Plaintiff also claims that the defendant has collected a large amount of money on' the execution, which he refuses to pay over, although payment of same has been demanded.

Defendant answers that he made due levy on the property of the defendant and received from the sale, $1,996.65 which he holds subject to his fees, etc.; and that he was delayed in making return by the delay of the learned judge of the supreme court in deciding an application made to. him by the defendant for the taxation of the defendant’s fees, costs etc., in the case.

It appeared in evidence that after the commencement of the action, the.fees, etc., of the defendant were duly taxed at $400, which sum deducted from $1,996.65, the amount admitted by the defendant to have been realized by the sale, would leave $1,596.65, to which the plaintiff was unquestionably entitled. There was evidence in the case that there was property of the said judgment debtor subject to levy under this execution and actually levied on by the sheriff, and out of which the whole amount of the judgment could have been realized together with the defendant’s fees, etc.

■ If the jury believed this evidence, (and it was clearly left, by the learned trial judge, to the jury to determine as a question of fact), then the plaintiff would be entitled to recover the full amount of his judgment as the measure of his damages (Ledyard v. Jones, 7 N. Y. 551; Sweezy v. Lott, 21 Id. 481). Evidence was presented on the part of the defense to contradict the evidence for the plaintiff on that subject and the charge of the trial judge was as favorable to the defendant as the law would warrant.-

The jury rendered a verdict for the full amount of the judgment, and interest; and a motion for a new trial was made.

The defendant’s objection to the complaint is not material.

The defendant having answered, the case made by the complaint, as proven, was sufficient to sustain the verdict and judgment (Code, § 1207; Murtha v. Curley, 90 N. Y. 376-7; see also Code, §§ 539, 540, 541).

After a careful examination of the evidence, and the argument of the learned counsel for the defendant, I am unable to see any reason why the verdict of the jury should be disturbed.

The judgment appealed from, is affirmed, with costs ; and the order denying the motion for a new trial is also affirmed, with ten dollars costs.

Sedgwick, Ch. J., concurred.  