Majority
p. 63Commodore P. Mitchell, App’lt, v. Alexander B. Baucus, Resp’t. (Supreme Court, General Term, Third Department, Filed September 21, 1889.)
Headnote
Sheriffs — False return — Evidence.In an action for a false return on an execution against the person, evidence of directions given by the plaintiff to another sheriff or his deputy in regard to the enforcement of another execution on the same judgment is inadmiss.ble.as it cannot tend either to justify the defendant's neglect or to prove the directions given to the defendant.
Appeal from judgment, entered upon the verdict of a jury in favor of the defendant, dismissing the complaint
The action was brought against the. defendant, who was sheriff of Saratoga county, for a false return on an exexecution against the person of one Francis McCue, issued in August,-1886. In October, 1886, defendant made a return of “not found.” On the trial the evidence as to the directions given to the defendant’s deputy was conflicting; plaintiff testifying that he told the deputy to arrest McCue, and ff he wanted to pay anything, he could pay just as well afterwards; while the deputy testified that he was instructed to get the money if he could; that plaintiff might have said he wanted it paid or McCue locked up, and that he construed these directions as warranting him in not arresting the judgment debtor. Plaintiff denied telling the deputy to get the money if he could, and if not, to arrest him.
Defendant introduced evidence, under objection, to show that in 1885, another execution against the person of McCue was issued on the same judgment to one Houghton, the then sheriff, and placed in the hands of the witness Carpenter, who was under-sheriff, and that plaintiff and his attorney directed Carpenter to work it for them to get the money; to work it out of McCue, if he could; to take fifty dollars at a time if he could do no better, and that when he returned the execution, plaintiff “ seemed grieved to think that the man had slipped; seemed to think I ought to have got the man if I could not get the money.”
The court charged the jury that if the directions and conduct of the plaintiff were such, at the time the execution was delivered, and while it was in the hands of the sheriff, as justified the deputy who held the process in supposing that it was put in his hands to assist in collecting the judgment, and not to arrest until he had made an effort to get the money out of McCue without arresting him, then the defendant was not liable. The jury found for the defendant
L. T. Brackett, for app’lt; John Foley, for resp’t.
Evidence of directions given by the plaintiff to another sheriff, or his deputy, in regard to his enforcement of another execution issued on this judgment, a year or so before
p. 64
the execution in question, was inadmissible. It tended in no way to justify the defendant for any neglect to enforce the execution placed in Ms hands. Hor 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.
Leaned, P. J., and Landon, J., concur.