Booth v. Rogers — 18 N.Y. St. Rep. 652

Majority

p. 652

Holmes Booth and Hayden, Resp’ts, v. James Rogers, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 19, 1888.)

Headnote

1. Executions — Under which no levy has been made must be delivered BY RETIRING SHERIFF TO HIS SUCCESSOR — CODE OlVTL PRO., § 184.

It is by Code Civil Procedure, § 184, made the duty of a sheriff on retiring from office to turn over to his successor all executions under which he has made no levy, and of the latter to receive them, and where.he has thus received an execution, an order requiring him to make return thereon or that attachment issue against him is properly granted.

2. Re-argument—Granting of motion for is discretionary — Review of decision.

A motion for re-argument is addressed to the discretion of the court, and its order will not be interfered with on appeal unless the moving party make a case which if presented on the original hearing would have entitled him to a favorable determination.

3. Security — Judgment allowed to stand 4s security on opening DEFAULT, HAS EFFECT AS SECURITY ALONE.

Where on setting aside a default, a judgment is suffered to stand as security, it exists merely as such and does not determine any right of the parties in the action, and presents no obstacle to taking precisely such future proceedings in that action as would be regular and requisite if no security in that form had been given or the judgment by default had not been entered.

Appeal from two orders, granted at the Erie county special term, the first ordering an attachment to issue against Frank F. Gilbert, as sheriff of Erie county unless he shall return the execution, issued in said action within five days after the service of a copy of the order.

The plaintiff recovered a judgment against the defendant for the sum of $324.91, and on the 29th day of October, 1884, issued and delivered to Harry H. Koch, then sheriff of Erie county, an execution thereon, in the usual form. Koch’s term of office expired on the last day of December, 1885, and on the 1st day of January, 1886, Gilbert became sheriff, and entered upon the discharge of the duties of his office that day. The execution was in the hands of the late sheriff at the expiration of his term of office.

After the entry of this order, Gilbert, the sheriff, applied for a reargument of the motion, presenting some facts in addition to those which appeared upon the original hearing.

On this motion it appeared that the plaintiff recovered and perfected a judgment in this action on the 10th day of April, 1884, for the sum of $293.41, and on the 1st day of May thereafter issued and delivered to the then sheriff, Harry H. Koch, an execution thereon in the usual and customary form, which has never been returned by either sheriff.

On the defendant’s motion the judgment was opened

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with a provision in the order that the same stand as security "until another trial was had upon the merits.

The motion for a reargument was denied.

The sheriff appeals from both orders.

White & Simons, for app’lt; George H. Osgoodby, for resp’ts.

On the facts presented on the first motion, the order requiring the sheriff to make return of the execution issued on the 29th day of October, 1884, and in default thereof an attachment issue against him, was properly .granted. It did not appear that G-ilbert’s predecessor in office, to whom the execution was delivered, had made a levy thereunder or taken any steps towards its execution. It was the duty of the retiring sheriff to turn" over the execution to his successor, and it was also the duty of the latter to receive the same and execute its commands, so far as it was in his power to do so. Code Civ. Pro., § 184.

The moving affidavit stated facts and circumstances which, if 'uncontradicted, would justify any court in holding that both the outgoing and incoming sheriff did all their duty as required by the said section, and that the execution came to the hands of the present sheriff, and he thus became charged with its execution

If Mr. Gilbert, the present sheriff, intended to raise an issue with the plaintiff" on the material facts stated in the moving affidavit, he was unfortunate in the manner in which he disputed an averment of fact which he was called upon either to deny or explain. He meets those affidavits by a mere denial of the fact in issue, without any attempt to explain his statements made to the plaintiff’s attorney, as set forth in his affidavit, from which it might be fairly inferred that the execution was delivered to him by his predecessor, and that he had received the same for the purpose of obeying its commands.

We fail to discover any error in granting the first order.

The motion for a reargument was addressed to the discretion of the special term, and its order will not be interfered with here, unless we can clearly see that the sheriff has made a case, which, if presented on the original hearing, would have defeated that motion. It may be conceded that he has fully excused his default, and the merits of the case, as presented on the motion for a reargument should be considered.

We think, after reading all the papers in the case, that the former sheriff did not make a levy under either execution, while the same were in his hands. The Code provides that, within ten days after the new sheriff has been inducted into office, the former sheriff must deliver to him

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all mandates then in his hands, except such as he fully executed or has begun to execute by the collection of money thereon, or by the seizure of, or levy on money or property in pursuance thereof. Section 184. In the second execution it is recited that a levy had been made under the one first delivered to the sheriff, which is an admission, by the plaintiff, of the fact that a previous levy had been made. But it does not estop the. plaintiff from presenting the true state of facts, and showing, if such was the case, that no levy was made by the sheriff, to whom the executions were originally delivered. We think the affidavits failed to show that a levy was made by the former sheriff, and that the execution, which the present sheriff is required to return, or in default thereof, an attachment issue against him, was received by him from the hands of his predecessor.

Where on setting aside a default, a judgment is suffered to stand as security, it exists merely as a security, and does not determine any right of the parties in the action; and there is no objection to taking precisely such future proceedings in that action as would be regular and requisite, if no security had been given in that form or that judgment by default had never been entered. Wait’s Practice, 669; Mott v. Union Bank, 38 N. Y., 18 .

The execution was entirely regular, although some of the proceedings, in the action previous to the final judgment, were unnecessarily recited therein.

The plaintiff is entitled, as a matter of right, to the return of that process by the present sheriff, stating his action by virtue thereof, and both orders should be affirmed, with costs of one appeal and disbursements.

All concur.