Majority
p. 514Barnes and others vs. Willett, Sheriff, &c. [New York General Term, September 16, 1861.
Headnote
In an action against the sheriff, for an escape, the insolvency of the debtor is no defense; and as a matter of pleading, it is erroneous to set it up in the answer. , _ ■Whether proof of the debtor’s insolvency can be given, in mitigation of damages, is a question to be decided on the trial, when the evidence is offered.
THE plaintiffs sued the defendant, as sheriff of the city and county of Hew York, to recover the amount of a debt owing to them by Jacob Cohen, who, being in the defendant's custody, on execution, escaped therefrom. The defendant, in his answer, set up, in mitigation of damages, the insolvency of the prisoner. The plaintiffs demurred to that part of the answer. The demurrer was sustained, at special term, and the defendant appealed.
Brown, Hall & Vanderpoel, for the appellant.
Albert Mathews, for the respondent.
It is not necessary to decide here, whether proof as to the insolvency of the debtor can he given in evidence in mitigation of damages. That question must he decided on the trial, when the evidence is offered.
It is set up in the answer in mitigation of damages. It is clearly no bar to the action, and should not have been pleaded as such. As matter of mitigation it is improperly in the answer, and shows no defense. As a matter of pleading it was erroneously set up in the answer.
Order appealed from affirmed with costs.
Clerke, Ingraham and Leonard, Justices.]