Rice v. Penfield — 2 N.Y.S. 641

Majority

p. 641

Rice v. Penfield.

(Supreme Court, General Term, Fourth Department.

July, 1888.)

Headnote

1. Sheriffs and Constables—Debt Incurred by Deputy—Promise of Sheriff to Pay.

A sheriff is liable for a debt contracted by his deputy in the care of cattle levied on, where the deputy in procuring such care assumed to act for the sheriff, and the latter, when asked to pay the debt, did not repudiate it, but promised to pay it later.

2. Same—Official Acts—Limitation of Actions.

Such debt does not come within Code Civil Proc. N. "5T. § 385, providing that an action against a sheriff “upon a liability incurred by him, by doing an act in his official capacity, ” must be brought within one year.

Appeal from Oneida county court; I. J. Evans, Judge.

Action by Byron Bice, assignee of C. A. Simpkins, against Thomas D. Pen-field, sheriff of Oneida county, for a debt due Simpkins for the care of cattle placed in his custody by a deputy-sheriff. The action was originally brought before a justice of the peace of the city of Borne, where the plaintiff was non-suited. The county court, on December 30, 1887, reversed the judgment of nonsuit, and the defendant appealed.

Argued before Hardin, P. J., and Martin and Follett, JJ.

McMahon & Curtin, for appellant. D. E. Powers, for respondent.

Appeal from a judgment of the 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 385th 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.