Wehle v. . Conner

Church, Ch. J. It was discretionary with the court below whether to receive the amended answer or not. The Special Term incorporated into its order the reason for denying the motion, that the proposed answer did not contain a defence, which it is supposed makes it reviewable here. But the General Term affirmed the order, generally, without assigning any reason, and it is at least doubtful whether such an affirmance should be deemed an adoption of the reason of the Special Term as'the only ground of affirmance; and from the opinion it might be inferred that the laches of the defendant influenced to some extent the decision. But waiving that point, we concur with the General and Special Term, that the answer did not set up facts constituting a defence. The sheriff was required by statute to return the execution, and the service of the attachment did not dispense with that duty. There was nothing in the attachment or the statute relating to that remedy to prevent his levying upon property and making the money upon the execution. If the attachment operated at all upon his duty in respect to the execution, it was as to paying over the money to the plaintiff. The attachment law did not prevent the collection of the execution, and the latter process expressly required it. The presumption is that the sheriff did not even make a levy, and actually omitted to do any thing in the discharge of his duty to collect the execution. It was six weeks after its delivery to him before the attachments were served, and then he took the responsibility of keeping the execution, and neglected to make any return. The sheriff had no such right of his own *261 motion and without the direction of the court. Such a course might prevent the collection of the execution and also defeat the benefit of the attachment. The order must be affirmed. All concur. Order affirmed.