Kneustler v. Doyle

MacLean, J. This judgment should be reversed because the return does not show that a cause of action cognizable in the court below was pleaded or proven. The David Mayer Brewing Company, the plaintiff’s assignor, recovered judgment against one-. Donellan, and issued execution thereon to a marshal, who, on February 15, 1898, made a levy upon property claimed by a third party, but did not remove the goods. Three days later the marshal returned to remove the property, but controversy arising, the marshal asked for police assistance, which was sent. At the instance of the police officers, all repaired to the station-house, where the marshal was arrested and detained upon a'charge of disorderly -conduct made by one of the officers, as the plaintiff claims, by direction of the defendant, a sergeant of police, and then at the desk. The marshal was released by the magistrate. When he went again, he did not find property sufficient to satisfy the execution. Even were all this so, as the justice may be assumed to have found, despite the strenuous contradictions of the defendants’ witnesses, neither the plaintiff nor his assignor had a right of action for injury to property, but at most for consequential damages sustained by loss of property, in which the marshal may have had a special interest by reason of his levy, but the general ownership in which remained in the debtor, or some person other than the execution creditor, whose interest therein was the extent of the ministerial officer’s liability to pay him the proceeds, if any, realized, to- the amount requisite to satisfy the execution (Scott v. Morgan, 94 N. Y. 508) and which does not constitute a cause of action within the jurisdiction of the Municipal Court. Greater Hew York Charter, § 1364. The judgment must, therefore, be reversed. Fbeedmah, P. J., and Leventeitt, J., concur. Judgment reversed, with costs.