Gregg v. Murphy

with $92.67 costs; if they could not he found, then to collect the sum of $142 damages, with his fees and the costs mentioned. In pursuance of this execution the defendant took possession of the property mentioned, and left it with the person in whose possession it was found. The execution was delivered to the defendant July 23, 1891, and on the 25th of the same month he took possession of the property under it. On the 27th he wrote the plaintiff’s attorney in the action in which the execution was issued, stating he had possession of the property, and asking the attorney to direct him what to do with it, to which the attorney subsequently replied that his client was out of the country; that he expected to see him soon and would then write him fully. On the 7'th of .September the attorney wrote the defendant that he had a letter from his client saying that Austin, in whose hand' the. property was left, would not give it up. To this, the defendant, on the same day, replied that he left the horse and other articles at Austin’s, except one wagon, which was at Barnes’ Corners; that he had taken possession of the goods, and Austin would give them up if called for; that he thought it cheaper to leave the horse there than to remove it elsewhere; and then added : “ Write me if you want to meet me there. I will get the property in your hands very quick.’’ On the next day the plaintiff wrote the defendant in regard to the property, stating that he had heard that Austin would not give it up, to which the' defendant replied that Austin did not refuse to give up the property ; that he (the defendant,) had taken possession of it, and had had it in his possession some time, and wanted to know where he should leave it. To this the plaintiff testified that he replied to let Waterman at Barnes’ Corners get the property, and take it over to John Gregg. On October 7th the plaintiff’s attorney wrote the defendant to let Sylvester Waterman, of Barnes’ Corners, have the property, to write him and deputize him to take the property, _and he would get it together for Gregg and himself. On the next day the defendant complied with his request by writing Mr. Waterman the facts in regard to the property, and by making him a special deputy to take the property in question for the plaintiff. On the same day he wrote the attorney stating what he had done, and asked for instructions as to what return to make upon the execution then in his hands. In reply, the plaintiff’s attorney directed him as to the return he should make and indorse upon the execution, and he made it accordingly. The proof also showed that Waterman did not obtain the property. About five months after the return of the execution, the plaintiff’s attorney again asked the defendant to take possession of the property, to which the defendant iii substance 2'eplied that he did not see liow he could get the property at that time, because he then had no execution in his hands, and stated that, if lie was to do anything more, he^ should have some papei’S upon which to take it. No new execution was issued to him, nor did the plaintiff give him any authority as sheriff to take possession of the property, except such as was given by the execution which had already been returned. There was evidence tending to show that neither the plaintiff nor his at

torney desired the property, but that they .were seeking to obtain a cause of action, either against tire sheriff or the sureties, upon the undertaking given in the replevin action.

A reading of the evidence in this case renders it manifest that the sheriff sought diligently to perform his duty to the plaintiff; that he persistently endeavored to have the plaintiff or his attorney or someone authorized by them, come to the county to take possession of the property, but failed, as both the plaintiff and liis attorney neglected to do so, or to provide any way for the defendant to deliver the possession of the property, until the letter in which the defendant was asked to deputize Waterman, who would obtain possession of the property for them. Thus, the defendant, in all he did, was governed by the dii-ections of the plaintiff or'his attorney,and sought to perform every duty which he owed them in the matter. Under such circumstances, it does not seem to me that the plaintiff was entitled to recover in this action. That a party in whose favor process is issued may give such directions to the sheriff as will not only excuse him from his general duty, but bind him to the performance of what is required of him, there is, I think, no doubt. Both the process, and the law. which conveys authority under it, are for the benefit of the party in whose behalf it is issued, and it is a general rule that a man may dispense wih an entire law which is intended for his aid or protection. It follows that he may qualify it, to a greater or less extent, according to his discretion. This is substantially the language of Davies, J., in Root v. Wagner, 30 N. Y. 9 , 17. See also Douglass v. Haberstro, 88 N. Y. 611 ; Crouse v. Bailey, 32 St. Rep. 394 ; 10 N. Y. Supp. 273 ; 11 N. Y. Supp. 910 ; Corning v. Southland, 3 Hill, 552 ; Mickles v. Hart, 1 Denio, 548 . As in this case it is quite obvious that the defendant acted in accordance with the directions of the plaintiff’s attorney, and in good faith, I think that as a matter of law he was protected in his action, and the court was justified, under the evidence, in directing a verdict for the defendant. Robinson v. Brennan, 11 Hun, 368 , 370. I have examined the various rulings to which attention has been called by the appellant in his brief, and find in them no error which would justify us in reversing the judgment. Thus, I am led to the conclusion that the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., concurred.

(dissenting.) In considering the question whether the verdict for the defendant was properly directed, we are required to take that view of the evidence which is most favorable to plaintiff. Under the execution, the defendant took possession of the property, and it was then his duty to deliver it to the plaintiff or to his order. The plaintiff, in September, gave him directions where and how to deliver it, but they were not followed. If the defendant failed to deliver as the writ required, he was liable to the plaintiff for the damages sustained. Code, § 102. The statement in the return that the property was delivered to W. S. Waterman for the defendant therein was not conclusive as

to the fact, of such delivery, although the form of the return was dictated -by- the attorney. The evidence would authorized the finding that the attorney, when he dictated this return, supposed that the property had in fact been delivered by the sheriff to Mr. Waterman, and concerning this the sheriff was in a position to know more than the attorney did. If the attorney, on this subject, acted under a mistake, it does not conclude the plaintiff any more'than giving a receipt would. It was open to explanation. The rights of the sheriff as to his ability to deliver were not affected, as: upon the evidence the jury might infer that the sheriff still had. control over the property. But it is argued that the ■ defendant, at the request of the plaintiff, in substance 'deputized Mn- Waterman to get the property, and that thereupon the defendant ceased to be in any way liable, whether Waterman •found the ..property or not. The process was not placed in the hands of 'Waterman. That was kept by the defendant, and returned. -Waterman and the plaintiff had, therefore, specially the right to rely on the correctness of the statements of the defendant in:his letter of October 8th, that the property was in his possession, and -was all at Austin’s except one article at Ragan’s. Those statements mot being correct, can the defendant still say that he is-- released- from all responsibility because at the request of plain-tiff he appointed Watermsn to get the property together? The situation was somewhat peculiar. The property was in one part' of-' the county and the sheriff was in another, while the plaintiff -lived in another county and the plaintiff’s attorney in still • another. The property had been for some time, as the defendant stated, in his possession, though not in fact transported from -the place where it was taken originally by the sheriff, and he wanted to know what to do with it. He had, upon taking it, •left- it in the custody of Austin, of whom it is apparent that the •plaintiff and'his attorney were somewhat suspicious. Prior to -October 8tb, the plaintiff had the right to call on the defendant forhctual delivery of the property to him or his agent; and the -question is whether it was the understanding of the parties that the giving of the direction to Waterman should relieve the defendant •of-ml't further responsibility, without reference to whether or not there should be actual delivery to Waterman; or, on the other hand, was it the understanding and expectation that the defendant would deliver, or cause to be delivered, the property to Waterman,.and, upon such delivery, the claim be satisfied? Neither ■of:-'these propositions should, upon the evidence, be affirmed as 'matter of law. The question is not whether the defendant is Tiáb'1'e'-for the acts or omissions of Waterman, and, therefore, -'within the purview of the cases cited by the learned counsel for defendant. The question is back of that, and is whether the 'defendant has been discharged from the liability which was upon •him just prior to the arrangement as to Waterman. Whether there was an arrangement to that effect, or whether there was a waiver by plaintiff of an actual delivery, were questions of fact 'for the jury to pass upon. If these views are correct, it follows ’tháí-'the case should have been submitted to the jury, and a new trial should, therefore, be granted.