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Ostrander v. Walter

2 Hill & Den. 329 Court N.Y. Sup. Ct. English

Delivered by Bronson, J.

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p. 329
Ostrander vs. Walter.

Headnote

Where an execution has been levied upon the property of a defendant, and the levy subsequently abandoned by his request and for his benefit, this will not amount to a satisfaction of the judgment.
An execution was issued by a justice of the peace, upon which the plaintiff acknowledged the receipt of a part of the judgment by an endorsement thereon to that effect, dated on the day the payment was made; and subsequently the execution was renewed in the usual form, except that the endorsement of renewal did not “express the sum due,” as required by the statute: Held, nevertheless, that when taken in connection with the plaintiff’s receipt, it was a sufficient compliance with the statute.
Semble, that the provision of the revised statutes requiring the renewal of a justice’s execution to express the amount due thereon, is directory merely; and though the party proceed to enforce the- collection of an execution upon a re
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newal insufficient in this respect, he cannot be made liable as a wrong-doer, except he attempt to collect more than is justly due.
Otherwise, if he proceed on a renewal not signed by the justice.
Trover for a threshing machine and other property, tried before Moseley, C. Judge, at the Onondaga circuit in April, 1840. On the 18th of August, 1838, Walter recovered a judgment by confession against Ostrander for $110,62 damages and costs, before a justice of the peace. Execution was issued by consent of parties on the 28th of August, and delivered to Fillmore, a constable, who, on the 31st of August, levied upon sufficient personal property of Ostrander to satisfy the execution; but the property was not removed. The execution was returnable in ninety days, and the constable advertised the property to be sold on the 24th of November following. On that day an arrangement was made between the parties by which Walter agreed that on being paid $40 he would wait for the remainder, on condition that he should hold on to the property by renewing the execution. Ostrander said if Walter went on to sell it would ruin him. He paid the $40, which was endorsed on the execution; and it was then agreed by both parties that the levy should be given up, that the execution should be returned to the justice and renewed, and should be again levied on the property of Ostrander to secure the judgment. In pursuance of this arrangement the execution was returned to the justice on .the 29th of November, with the endorsement of the $40 upon it; and the justice on that day renewed the execution by an endorsement upon it. When renewed, the endorsements stood as follows: “Rec’d. on this execution forty dollars, Nov. 24, 1838. (Signed) William Walter.” Below this was written'—“I hereby renew the within execution, November 29, 1838. (Signed) R. Gilmor, J. P.” The renewed execution was on the same day delivered to Topliff a constable, who by order of Walter levied on the threshing machine and other property in question in this suit, and sold the same on the 22d of De
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cember 1838. Ostrander forbade the levy, and claimed to recover in this action, on the ground that the judgment was satisfied by the first levy; he also insisted that the renewal was not in conformity to the statute, which provides, that “ if any part of such execution has been satisfied, the endorsement of renewal shall express the sum due on the execution.” (2 R. S. 251, § 145.) The judge’s charge to the jury left it somewhat doubtful whether the first levy was in point of law a satisfaction of the judgment. On the other question he instructed the jury, “ that the execution did not appear to have been renewed strictly in compliance with the statute, for want of expressing the sum paid and the balance to be collected on it.” The jury found a verdict for the plaintiff for $90 damages, and the defendant now moved for a new trial upon a case made.
A. H. Jerome, for the defendant.
H. C. Van Schaack, for the plaintiff.

By the Court,

The first levy was abandoned at the request and for the special benefit of the execution debtor; and there is no foundation for the argument that that levy amounted in law* to a satisfaction of the judgment. We had occasion to review the cases on this subject in Green v. Burke, ( 23 Wend. 490 ;) and nothing need be added on the present occasion.[1]

Forty dollars had been paid on the judgment, and the objection made to the renewal is, that the justice did not in his endorsement of renewal “ express the sum due on thenexecution.” (2 R. S. 251, § 145.) I am strongly inclined to the opinion that this provision should be regarded as only directory to the justice; and that his omission to comply with it altogether, would not make the creditor a wrong-doer and subject him to an action, where, as in this case, there has been no attempt to collect more

(a) (a) See S. P., Porter v. Boone, (1 Watts & Serg. Rep. 251; Walker v. Bradley, (2 Arkan. Rep. 578.)

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than the balance due. In Barhydt v. Valk, ( 12 Wend. 145 ,) on which the plaintiff relies, the endorsement was not signed ■ by the justice, and the renewal was therefore incomplete. It amounted to nothing. But here the renewal was in the usual form. The only objection to it springs out of the collateral fact that a partial payment" had been made. Where no abuse has followed, I cannot think that such an omission by the justice will subject the creditor to an action.

But however that may be, I think this renewal was well enough upon another ground. The object of the legislature in making this provision was to guard the execution debtor against being subjected to a double payment. Now, taking the two endorsements on the back of the execution together, the. whole matter is plain enough. First, the creditor says, on such a day I received forty dollars. Immediately under that • the justice writes, “ I renew the within execution,” and dates and signs it. That was, in effect, saying, “ I renew it for the balance unpaid.” The officer would read it in that way, and so it would be understood by every one. All the materials were furnished for calculating the interest and ascertaining the true sum due on the execution, Id cerium est quad cerium reddi potest. The jury should have been instructed that the renewal was sufficient.

New trial granted.

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