Douglas v. . Haberstro

*618 Finch, J. This action must rest upon the sheriff’s liability as bail. It was so treated by the court and by the counsel upon the argument before us. A prima facie case was established against the defendant, and the questions to be considered grow out of the defenses which he sought to interpose. They began with an attack upon the executions. Neither of them were tested in the name of any court or judge, and the body execution did not direct the time for its return. (Code, §§ 23 and 1366.) These omissions are claimed to have made the process void. We think they were merely irregularities which might be amended or disregarded, and of which the sheriff, either in his official character or as bail, could not take advantage. (Hill v. Haynes, 54 N. Y. 153; Bank of Genesee v. Spencer, 18 id. 150; Code, § 723; Kelly v. McCormick, 28 N. Y. 318; Bensel v. Lynch, 44 id. 162; James v. Gurley, 48 id. 163.) These questions have been very elaborately argued, and with an exhaustive review of the authorities, but the conclusion we have stated seems to us so well established as to make discussion unnecessary. A much more serious question grows out of defendant’s third answer. It was held to constitute no defense, and his offer to prove it was rejected. That defense, as pleaded, was in substance that the execution against the person was returned by the deputy sheriff, at the request and by the direction of the plaintiff’s attorney, in order that this action might be commenced, and in form the law seem to be complied with, and that this was done without the knowledge or consent of the defendant. This answer must be read in connection with the allegations of the complaint. That asserts the recovery of a judgment, the issue of an execution against the person of the judgment debtor on the 17h day of March, 1879, and its return by the sheriff, “ defendant not found,” on the third of April following. It is this return, made upon such date, to which the answer refers and over which it raises the question of plaintiff’s interference. It must be taken then to allege that the execution was returned on the 3d of April, 1879, defendant not found, “at the request and by the direction” of *619 the plaintiff’s attorney; that it was so returned by a deputy or under sheriff without the knowledge or consent of defendant; and that the return was thus made to enable the plaintiff to fix the sheriff as bail through a seeming compliance with the law. All the proof offered under this answer was excluded. So far as the offers made went beyond the allegations of the answer they were properly rejected for that reason. But there remained a distinct offer to prove the facts alleged in the answer, which was overruled on the ground of insufficiency. The question, therefore, is fairly presented whether such answer constituted a defense, and whether upon its facts the sheriff was released from his liability as bail. It seems to have been partly assumed by the court below, and is fully claimed in the argument here, that the sheriff’s defense as bail is limited by section 599 of the Code, and that he cannot be freed from liability except upon facts which bring him within those provisions. It has been often decided that where the sheriff has become liable as bail he has all the rights and privileges of bail, and the rule of the courts in this respect has been made a positive statute in the Code. (Brady v. Brumdage, 59 N. Y. 310; McGregory v. Willett, 17 How. Pr. 439; Code, § 595.) Section 599 does not purport to limit or restrict these rights. It does not profess to define what all of them are. Itprovides that “ in an action against bail, it is a defense,” among other things, “that a direction was given, or other fraudulent or collusive means were used, by the plaintiff or his attorney, to prevent the service” of the execution. By this section certain facts occurring are specifically declared to constitute a defense. It is not said, nor is it the import of the provision, that nothing else shall be. It does not restrict the general words of section 595, which confer upon the sheriff liable as bail, all the rights and privileges of bail. The defendant therefore, was not bound to conform his pleading to the precise terms of that section, and bring himself literally within them, as a condition of exemption from liability. If he had any other defense, sufficient within recognized rules, and properly *620 pleaded, he was entitled to its benefit, although in greater or less degree it varied from those declared to be such by the Code. It is not necessary, however, to rest the defense pleaded upon grounds independent of the section referred to. That provides that a direction by the attorney in the execution to prevent its service shall constitute a defense. It is said that such direction must be fraudulent or collusive and the fraud must be alleged. But section 599 was not a new enactment. It was taken, substantially, from a similar provision in the Revised Statutes. (2 R. S., part 3, chap. 6, tit. 6, §§ 31, 32, 33.) It is said by its -compiler to be section 33 of the Revised Statutes, “ modernized.” The changes are slight and merely verbal; and the two enactments are so far identical that the construction of the original is entirely applicable to the copy. Such a construction was early adopted. (Bradley v. Bishop, 7 Wend. 353; Bishop v. Earl, 17 id. 317.) The first of these cases analyzes section 33 and states separately the four different defenses available under it to the bail. The third of these is stated to be, that directions were given by the plaintiff or his attorney to prevent the service of the writ; and the fourth, that any other fraudulent or collusive means were used tó prevent such service. This case was decided just after the revision, and six years later, in the second of the cases cited, it was expressly held that a direction to the sheriff to prevent the service of the writ was a defense to the bail, although neither fraud nor collusion were alleged. We see no reason for disagreeing with that interpretation. It held that the plaintiff, for whose benefit the writ was issued, had the right to control it, and where he gave a controlling direction which altered the sheriff’s duty, the bail were to be protected. The answer we are considering alleged that the execution was returned “ not found,” at the request and by the direction of the plaintiff’s attorney. This was sufficient without an allegation of fraud or collusion. But it is said to be insufficient because it did not allege that the direction was given to prevent service of the process. The return non est, etc., at its date, did prevent such service, *621 and the direction dictated the return. When made, the sheriff had more than forty days remaining of the sixty within which he was at liberty to produce his prisoner. The direction to return, at the time it was given, that the debtor could not be found was, on its face, a direction to prevent the service of the writ. But the1 answer alleges the intent with which the direction was given. It pleads that it was to enable the plaintiff to sue the sheriff for the non-appearance of his prisoner. It was to fix him as bail. The averment of that intent necessarily involves a purpose in the direction to prevent the service of the process. Only in that event could the sheriff be sued as bail. So that the answer substantially alleged a direction which must necessarily have required an omission to serve the writ and a purpose and intent to sue the sheriff as bail, on account of such omission. We think, therefore, that the answer was good and alleged a defense. We may treat the act of the deputy or under sheriff as that of the sheriff, as the plaintiff claims that we should. Then the facts alleged are, that in a case where the sheriff was liable as bail; where he had forty days within which to produce the prisoner; where, as bail, he could arrest him anywhere in the State and put him in custody in his own county; where, for all that appears, such course was open to him and his protection assured, comes the plaintiff’s attorney, having the right to direct as to the execution or non-execution of the process, (Root v. Wagner, 30 N. Y. 1; Nelson v. Kerr, 59 id. 225), and orders the sheriff, forthwith, to return the execution “ defendant not found; ” the sheriff obeys the direction and makes the return, in obedience to the command, and then is sued as bail, because he did not find and arrest the debtor. We think, in such a case, that the direction given by the plaintiff is a waiver of the sheriff’s liability as bail. It is difficult to construe it otherwise. The sheriff is liable as bail for not finding the debtor; he does not find Mm because the plamtiff told him not to; and then the plaintiff sues him for obeying Ms direction. His counsel, in a brief prepared with great care and industry, puts the case thus-: He says the action was brought upon an *622 express contract to pay $1,200, in case "Warren was not taken upon the issue of a body execution. If that be granted, it was still competent for the plaintiff to waive the liability and excuse non-performance of the condition, and if that non-performance is occasioned by his own act or direction he certainly can have no action therefor. But it is further argued that the sheriff was at liberty to disregard the direction, and that it was his duty to do so, and we are referred, in that connection, to two other sections of the Code (§§ 595, 598). By the first of these it is provided that “ the sheriff must diligently endeavor to enforce an execution issued and delivered to him * * * notwithstanding any direction he may receive from the plaintiff or his attorney.” The same provision existed in the ¡Revised Statutes, and never yet has been held to neutralize the specific provision making a direction to the officer, which prevents service of the writ, a defense to the bail, when the order emanates from the plaintiff in the execution. This provision fixes the sheriff’s duty as between himself and any person other than the plaintiff giving the directions. It does not make the officer liable to the party who directs because of obedience to the directions. The other section referred to, after giving to the sheriff liable as bail the rights and privileges of bail, closes with a proviso that the section shall not apply “ to a case where a defense arises to an action against the bail in consequence of an act or omission of the sheriff.” It is not necessary now to say what the precise scope of this provision is. It is enough that it does not reach the present case, for here the defense arises, not out of the act or omission of the sheriff, but out of the act of the plaintiff, exercised through his attorney. We are of opinion, therefore, that the defense pleaded was good, and the defendant should have been allowed an opportunity to prove it. Judgment reversed, and new trial granted, costs to abide the event. All concur. Judgment reversed.