Montgomery v. Odell — 56 N.Y. St. Rep. 625

Majority

p. 625

Jackson Montgomery, as Sole Overseer of the Poor of the Town of Spencer, Resp’t, v. Marcellus C. Odell, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed November, 1893.)

Headnote

1. Costs—Collection.

An execution cannot be issued upon a judgment against an overseer of the poor in his official capacity,

3. Same.

Such judgment may be collected of the town for which the overseer acts.

In such case, where the town has been indemnified by a deposit by informers, it may reimburse itself out of such deposit.

4. Same.

The part of the deposit not needed for this purpose may be claimed by the perso'ns making it.

Appeal from an order of the Broome county special term denying a motion “ for an order directing the county treasurer of Tioga county to pay to the attorney for the defendant herein, from the said money so deposited with him, the sum of one hundred and sixty-four dollars and thirty-four cents ($164.34).”

Edward E. Dean, for app’lt; W. Marlin Jones, for resp’t

This action was brought by an officer in his ■official capacity, and no execution can be issued upon a judgment recovered against him in his official capacity. Section 1931 of the Code of Civil Procedure. Such a judgment as has been entered in this action may be collected of the town for which the plaintiff, as overseer, acts. Thayer v. Lewis, 4 Denio., 273 ; Avery v. Slack, 19 Wend., 50 ; The People v. The Board of Supervisors of Delaware County, 12 How., 50 . The money deposited with the county treasurer was placed there by the informers; they are not plaintiffs in the action; no judgment has been rendered against them. The money needed to indemnify the town against any loss it may sustain by reason of. being obliged to pay any judgment rendered in this action, may be claimed by the town or the officer in its behalf. Such portion of the money as shall not be need to indemnify the town may be claimed by the persons making the deposit. In those controversies the defendant has no vested interest. Nothing is shown by the papers presented upon the motion to indicate that the defendant has not a perfect remedy for the recovery of the costs awarded to him by pursuing the usual methods to enforce judgments in such a case as this. These views, together with those suggested in the opinion of Parker, J., at special term, lead me to advise an affirmance of the order.

Order affirmed with $10 costs and disbursements.

Merwin, J., concurs; Martin, J., not voting.

p. 626

Rew York State Reporter, Yol. 56. [Sur.Ct.