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Kirschberg v. Coghlan

115 N.Y.S. 1078 Court N.Y. App. Term Decision date 1909-04-08 English

Delivered by SEABURY, J.

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KIRSCHBERG v. COGHLAN.
(Supreme Court, Appellate Term.
April 8, 1909.)

Headnote

Municipal Corporations (1 183[1] )—Official Acts—Levy by Marshal.
The act of a .marshal of New York City in levying under a warrant of attachment in good faith was an official act, and not a trespass; and hence an action for wrongful levy was barred after one year, under Municipal, Court Act (Laws 1902, p. 1577, c. 580) § 304, making provisions relating to the taking of property by sheriffs applicable to marshals, etc., and under Code Civ. Proc. § 385, subd. 1, requiring suit against a sheriff to enforce liability incurred in an official capacity to be brought within a year.
[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 183.*]
. Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Jacob Kirschberg against Mary E. Coghlan, executrix of the estate of William F. Coghlan, a marshal of New York City. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.
Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.
James T. Moore, for appellant.
J. Leon Brandmarker, for respondent.

This action was originally brought against William

F. Coghlan, as a marshal of the city of New York, to recover damages for a wrongful levy made under a warrant of attachment alleged to have been made by said Coghlan as marshal on September 27, 1906. The action was commenced on March 36, 1908. The only question involved upon this appeal is whether this action is barred by the statute of limitations.

The pleadings and the proof show that in making the levy the defendant assumed to act as marshal, and acted in good faith, believing that he had authority to act. His act was, therefore, not merely colore officii, but virtute officii. Under these circumstances his act must be regarded, not as a trespass, but as having been done in his official capacity. An action against a marshal for such an official act must be brought within a period of one year, or it is barred by the statute of limitations. Dennison v. Plumb, 18 Barb. 89 . Section 304 of the Municipal Court act (Laws 1903, p. 1577, c. 580) provides that:

“All provisions of law In relation to the taking and restitution of property by sheriffs of counties shall apply to the taking and restitution of property by the said marshals, except that a marshal is not restricted in the performance of his duty as such, to the territorial limits of a county, when engaged in the service or execution of a process or mandates but is authorized to act within the limits of the city of New York.”

Subdivision 1 of section 385 of the Code of Civil Procedure prescribes that “an action against a sheriff or a coroner, upon a liability incurred by him, by doing an act in his official capacity,” must be

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commenced "within one year” after the cause of action has accrued. The acts complained of in this action were within the meaning of this statute, and an action against the marshal for his official act was within the one year period of limitation.

The judgment is reversed, and the complaint is dismissed, with costs to the appellant. All concur.

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