Smith v. Geraty

MacLean, J. An execution, issued out of the Municipal Court, was delivered to the defendant, a city marshal, whereof, according to the return of the clerk of the court, no return was made or filed. Prima facie the defendant was liable for the amount of the judgment, and could only relieve himself by showing that the judgment creditor was not aggrieved. He admitted receiving the execution, but asserted, as he was led, that he had returned it by mail, which he, residing in the place where the clerk’s office is situated, might not do. He did not show that he made a levy, or that the judgment debtor had no property upon which a levy might be made; and so the judgment in his favor may not stand. [102] The doctrine hereof is not in accord with some remarks in a case cited upon the respondent’s brief and-wherein an interpretation was put upon a section of a statute of 1857 which has been adopted into the Municipal Court Act; nor is the law laid down in that case in accord with the common course of decisions in the courts of last resort. Ledyard v. Jones, 7 N. Y. 550. Moreover, in the'case referred to, the marshal had filed a return. Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. Gildersleeve, J., concurs.