Mitchell v. Baucus — 7 N.Y.S. 91

Majority

p. 91

Mitchell v. Baucus.

(Supreme Court, General Term, Third Department.

September 21, 1889.)

Headnote

Sheriffs and Constables—Failure to Execute Writ—Evidence.

In an action against a sheriff for neglecting to arrest a judgment debtor qn an. execution against Ms person, evidence of directions given by plaintiff to a former-sheriff as to another execution against the debtor, on the same judgment, is inadmissible.

Appeal from circuit court, Saratoga county.

Action for damages by Commodore P. Mitchell against A. B. Baucus, sheriff of Saratoga county, on account of failure of defendant to arrest, on execution against his person, one Francis McCue, a judgment debtor of plaintiff. Verdict having been given for defendant, and judgment entered thereon,, plaintiff appeals.

Argued before Learned, P. J., and Landón, J.

E. T. Braokett, for appellant. John Eoley, for respondent.

Evidence of directions given by the plaintiff to another sheriff, or his deputy, in regard to his enforcement of another execution.

p. 92

tissued on this judgment, a year or so before the execution in question, was inadmissible. It tended in no way to justify the defendant for any neglect to enforce the execution placed in his hands. Nor did it tend to prove what •directions the plaintiff had given to this defendant. The evidence in this ■case was conflicting, and this improper evidence very probably had influence with the jury. Judgment reversed; new trial granted; costs to abide event.