Hampton v. Boylan — 10 N.Y. St. Rep. 788

Majority

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Isaac Hampton, App'lt, v. Clark J. Boylan, Henry Hulbert and James L. Gemmel, Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed October 21, 1887.)

Headnote

1. Execution—From justices’ courts—Return of in case of removal of justice—Code Civ. Pro., §§ 3031, 3039, 3042, 3144, 3145, 3146.

Under Code Civ. Pro., § 3031, a constable must return an execution, placed in his hands, to the justice of the peace from whom it issued. By

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virtue of section 3039, -in case of the failure of a constable to return an execution within five days after the return day thereof, the party in whose favor it was issued may recover, in an action against the constable, the amount of the execution, etc. His sureties are, by section 3042, declared liable for any neglect of duty with respect to the execution. It is provided by section 3144 that if a justice of the peace, either before or after the expiration of his term of office, removes from the town or city wherein he was elected, he must forthwith deposit with the clerk of that town or city his docket books and all other books and papers in his custody relating to an action or special proceeding which has been heard by him, or commenced before him, and, by section 3145, that he must make, in the docket book deposited by him, as prescribed by the last section, a certificate under his hand, to the effect that each judgment or order entered therein was duly rendered or made as therein stated, and that the same appearing to be due thereupon, has not been paid to his knowledge, and, by section 3146, that if a justice of the peace dies, or his office becomes otherwise vacant, the town or city clerk must demand and receive all books and papers which belonged to him in his crucial capacity from any person having them in possession. Held, that the provisions of the Code must be read together so as to form one harmonious Code of practice, and that, reading sections 3031 and 3146 together, there was no conflict, but a consistent proceeding, provided under the changed circumstances of the death or vacancy of the office of the justice.

2. Same—Return to office of town clerk—In what case sufficient.

He'd, that a justice of the peace, having removed from the county in which he was elected, and having deposited his official hooks and papers in the office of the clerk of the town, as required by the provisions above quoted, a return made by a constable of an execution to the office of the clerk of the town within the time limited by the statute, was a substantial compliance with the law and freed himself and his sureties from liability.

8. Same—Omission to enforce execution—When Permissible—Estoppel.

Held, that the plaintiff’s attorney in an action, having instructed a constable not to arrest the judgment debtor, as directed by an execution against his person therein, as it was void, the plaintiff was thereby estopped and the constable was freed from any responsibility in obeying such instructions.

4, Attorney—Communication by of fact of employment—Not prohibited by Code Civ. Pro., § 835.

Held, that testimony of an attorney, as to the fact of his employment, did not come within the prohibition contained in Code Civ. Pro., § 835; that this section related to the subject matter only.

Appeal from a judgment entered upon a verdict at the Allegany circuit, and from an order denying motion for a new trial made upon the minutes of the court.

J. M. McNair, for app’lt; William C. Windsor, for resp’ts.

On or about the 17th day of June, 1881, the plaintiff recovered a judgment against one Michael Gr. Munaay before B. 0. Roup, a justice of the peace. Thereupon an execution was issued upon the judgment, and delivered to the defendant Boylan, who was an acting constable of that town. The execution was in the usual form, against the property of the judgment-debtor, and in case sufficient property could not be found, it commanded the arrest of the judgment-debtor and his conveyance to the

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jail of the county, there to remain until he paid the judgment, or was discharged according to law.

This action was brought against the defendant Boylan as constable, and the other defendants as his sureties, upon the bond given by him as such officer, to recover the amount of the execution, upon the ground that he failed to return the same to the justice within the time prescribed by law, and that he also failed to arrest the judgment-debtor as he was therein commanded to do. Upon the trial it appeared that the action was upon a breach of contract, and the justice testified that he issued the body execution through mistake; that the defendant Boylan was- advised by Mr. Windsor, the attorney who tried the case for the plaintiff before the magistrate, and who procured the execution to be issued, not to arrest the defendant upon it, that it was void; that the execution should only have been one on contract, and that the defendant would get into trouble if he made the arrest, and that he better hold it and do nothing further under it. It further' appeared on thé trial that before the return day of the execution the justice filed his docket with the town clerk, together with the certificate required by the Code, and removed from-the county. The defendant gave evidence tending to show that after the delivery of the execution, to him he attempted to collect the execution out of the personal property of the judgment-debtor, but that none could be found, and that within sixty-five days from the time that the execution was delivered to him, he duly made his return upon his execution, and filed the same with the town clerk.

The court charged the jury that if they should find from the evidence that the constable returned the execution to the town clerk’s office within sixty-five days after its issuance; such return would be a compliance with the law, and consequently would relieve the constable and his sureties from liability. This charge was excepted to, and presents the only serious question to be considered upon this appeal.

Section 3031 of the Code provides that “the constable must return the execution to the justice,” etc.

Section 3039 provides that “if a constable fails to return an execution within five days after the return day thereof, the party in whose favor it was issued may recover in an action against the constable, the amount of the execution,” etc.

Section 3042 provides that his sureties are liable for any neglect of duty with respect to the execution.

The execution was returnable within, sixty days. The constable had five days thereafter in which to make his return to the justice, and this he failed to do, but instead

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thereof made his return and filed it with the execution in the office of the town clerk.

The question is thus presented as to whether the removal of the justice from the county, and the surrender of his office as justice, relieves the constable from making return to him. In case the justice had absconded and had removed to parts unknown, or had died, a return to the justice, under section 3031, could not be made; and we can hardly believe that under such circumstances it was the intention of the legislature to hold the constable and his sureties responsible for the amount of the execution. In the case under consideration there was a removal of the justice from one county to another. Was.it the duty of the constable to follow up the justice into the county to which he had removed and then make his return to him ? By removing from the county he had abandoned his office; he had surrendered up his docket, and was no longer authorized to act as a magistrate. If the constable could be required to follow him into one county, he could into another, even the remotest county in the state, and if into such county, why not into other states, or even foreign countries ?

This would impose hardships upon constables which would be unjust and inequitable, and such construction, therefore, ought not to prevail, unless required by the express provisions of the Code.

Section 3144 provides that “if a justice of the peace, either before or after the expiration of his term of office, removes from the town or city wherein he was elected, he must forthwith deposit with the clerk of that town or city his docket book, and all other books and papers in his custody, relating to an action or special proceeding which has been heard by him or commenced before him.”

Section 3145 provides that: “A justice of the peace must make in each docket book deposited by him, as prescribed in the last section, a certificate under his hand to the effect that each judgment or order entered therein was duly rendered or made as therein stated, and that the sum appearing by the book to be due thereupon, had not been paid, to his knowledge.”

All this, as we have seen, had been done by the magistrate in this case, before removing from the county.

Section 3146 provides that: “If a justice of the peace dies, or his office becomes otherwise vacant, the town or city clerk must demand and receive all books and papers which belonged to the justice in his official capacity, from any person that has them in possession.”

While this section does not m express terms state that the execution shall be returned to and filed with the town clerk, still it appears to us to be authority for such filing.

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Justice Roup’s office having become vacant by his removal from the county, the town clerk thereby became entitled to demand and receive all books and papers which belonged to the justice in his official capacity. The execution which the justice had previously issued was required to be returned to and filed with him. The execution, therefore, belonged to the justice in his official capacity, and was one of the papers which the town clerk had the right to demand and receive from the person having the possession of it. The various provisions of the Code must be considered and construed together, so as to form one harmonious Code of practice. When we come to read sections 3031 and 3146-together, there is no conflict, but a harmonious, consistent proceeding, provided under the changed circumstances of the death or vacancy in the office of the justice.

The court also charged the jury, that if they should find from the evidence, as a matter of fact, that Mr. Windsor was authorized by the plaintiff to look after the execution, and gave the directions to the officer, tinder the authority of the plaintiff, to hold the execution, and he did hold it, that they should find a verdict for the defendant.

This charge was not excepted to. Mr. Windsor, as we have seen, was the attorney for the plaintiff in the trial of the case before the magistrate and procured the execution to be issued. As he testified, he was authorized by the plaintiff to look after it in the hands of the constable.

We think, therefore, if he did instruct the constable not to make the arrest, that the execution was void in that particular, to hold the same, etc., the plaintiff is estopped by the acts of his duly authorized agent, and that the constable ought not to he held responsible for doing that which the plaintiff or his agent requested him to do.

The testimony of Windsor was objected to, and it is now , claimed that it was in violation of section 835 of the Code, which provides, that: “An attorney or counsellor-at-law shall not be allowed to disclose a communication made by his client to him or his advice given thereon in the course of his professional employment.” We apprehend, however, that the communication and advice which is privileged under this provision, pertains to the subject-matter, and not to the fact of his employment as an attorney. Otherwise, we should be unable to determine whether the attorney was acting in the course of his professional employment.

' No other questions are raised which we deem it necessary to here discuss.

The judgment and order should be affirmed.

Smith, P. J., Barker and Bradley, JJ., concur